T 


,     '       " 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


L.a    I, 


OF  THE 


LAW  AND  PRACTICE 


IN   ACTIONS  AGAINST 


MUNICIPAL  CORPORATIONS 


FOR 


NEGLIGENCE 

IN  THE    CAKE   OF  HIGHWAYS. 


BY 

WILLIAM   W.  MORRILL, 

AUTHOR   OF    "COMPETENCY   AND   PRTVTIiEGE   OF   WITNESSES." 


NEW   YORK: 

S.  S.  PELOUBET, 

LAW   PUBLISHER   AND   BOOKSELLER, 

80    N  ASS  AT    STREET. 
1887. 


COPYRIGHT, 
BY   W.    W.    MOEBILL, 

1887. 


PREFACE. 


Actions  against  municipal  corporations  for  injuries 
arising  upon  highways  are,  it  is  generally  admitted, 
unduly  numerous.  To  account  therefor,  some  persons 
argue  an  unseemly  readiness  to  make  cities  and 
villages  suffer  for  the  misfortunes  of  travellers  ;  others 
insist  that  the  corporations  are  quite  too  forgetful  of 
their  duty  toward  those  who  use  their  streets. 
Probably  both   opinions   are   correct. 

Irrespective  of  merit,  such  actions  abound  and  are 
to  be  prosecuted  and  defended.  If  they  do  not  con- 
stitute a  separate  title  in  the  law,  or  deserve 
consideration  in  a  separate  treatise,  there  still  may 
be  room  for  a  hand-book  of  ready  reference  to 
matters  likely  to  arise  during  their  preparation  and 
trial.  .A  desire  to  provide  something  of  that  sort  is 
the   motive  of  this    book. 

The  plan  of  treatment  contemplated  at  the  outset 
is  rather  rashly  made  public  in  the  introduction  ;  it 
may  promise  somewhat  too  much  or  too  little  ;  still 
it    is    not   believed    that    any    striking    departure     has 

[iii.] 


^QE^CIE-    1 


jv  Preface. 

been  made  from  the  scheme  there  outlined.  To  what 
is  there  stated  may  be  added,  that  since  the  subject 
under  consideration  is  only  a  branch  of  the  general 
subject  of  negligence,  it  has  been  found  necessary 
to  consider  many  topics  common  to  that  whole  subject, 
and  useful  to  draw  illustrations  from  the  whole  field 
of  negligence    cases. 

Finally,  it  may  be  stated,  that  while  the  book  is 
primarily,  to  use  the  language  of  the  almanac-makers, 
"calculated  for  the  longitude  of"  New  York,  yet  the 
statutes  and  decisions  of  other  States  are  constantly 
cited  and  considered ;  and  the  intention  has  been 
to  make  its  application  general,  so  far  as  may  be, 
without  going  into  all  the  technical  details  peculiar 
to   each  jurisdiction. 

W.  W.  M. 

Trot,  N.  Y., 

August  15, 1887. 


TABLE   OF   CONTENTS. 


PAET  I. 
LAW. 

CHAPTER    I. 


Introductory 

1.  Scope  and  limitations 

2.  Sources  of  danger  to  travellers . 

3.  Injuries  without  remedy 


Page 

1-8 

1 
2 


CHAPTER   II. 

9-24 
Who  may  Sue 

A.  Person  Directly  Injured 

l.Rule 10o 

2   Abatement 

„      „  10-11 

B.  Husband 

1.  Rule 

2.  Abatement.     Revival 

3.  Death  of  wife 

^      t,  ••••     U-12 

C.  Parent 

1.  Rule U 

in 

2.  Adopted  chdd 

3.  Child's  separate  action 

_      ,,    ..  12 

D.  Master 

[v] 


vi  Contents. 

Page 

E.  Injuries  Resulting  in  Death 12-24 

1.  Generally 12 

2.  Outside  New  York 13 

F.  Injuries  Resulting  in  Death.     New  York 14-24: 

1.  Act  of  1847 14 

2.  Amendment  of  1849 15 

3.  Amendment  of  1870 16 

A.  Code  Civ.  Pro 16 

5.  Relation  of  decedent  to  beneficiary 18 

6.  Existence  of  widow  or  next  of  kin 19 

7.  Fact  of  damage 19 

8.  Abatement ' 19 

9.  Extra-territorial  effect  19 

10.  Common-law  right  of  husband  or  parent. . . . ..  20 

11.  Bar  by  act  of  parent 23 

12.  Bar  by  act  of  decedent 23 

13.  Joinder  of  actions  24 

CHAPTER    III. 

Grounds  of  Liability.     Whom  to  Sue 25-38 

A.    Grounds  of  Liability 25-34 

First.    Nuisance 26-33 

1.  Rule 26 

2.  Creator  out  of  possession 26 

3.  Maintainer  of  nuisance 26 

4.  Knowledge 27 

5.  Ignorance  as  an  excuse 28 

6.  Non-user  as  an  excuse 29 

7.  License,  generally 30 

8.  Effect  of  license 30 

9.  Degree  of  care  under  license 32 

Second.     Negligence 33-34 

10.  Negligent  act 33 

11.  Neglect  of  duty 34 

B.     Whom  to  Sue 34-38 

1.  Principal 34 

2.  Owner  for  default  of  contractor 34 


Contents.  "ni 

Page 

3.  Officers 35 

4.  Agents  and  servants 

5.  Contractors 3" 

6.  Abutting  owners 3 ' 

7.  Concurrent  liability ^7 

CHAPTER    IV. 

Highways,  How  Established 39-60 

By  Statutory  Proceeding 40-41 

B.  By  Prescription 41-44 

1.  Introductory ** 

2.  in  New  York 41 

3.  In  other  States 43 

C.  By  Dedication 44-59 

1.  Introductory 44 

2.  Dedication  defined 45 

3.  Intent  must  be  proven 45 

4.  Manner  of  proof 46 

5.  Intent  shown  by  acts 46 

6.  Conveyance  by  map,  binding  on  parties 46 

7.  Contra,  as  to  the  public 47 

8.  Right  of  way 47 

9.  Map,  by  whom  made 48 

10.  Actual  map 49 

11.  Inference  from  user 49 

12.  Revocation 49 

13.  Acceptance,  generally 50 

14.  How  proven 60 

15.  Acts  to  prove 51 

16.  User 52 

17.  Adjudications  as  to  user 52 

18.  Statutory  acceptance  by  limitation 56 

19.  Leading  cases 57 

20.  Miscellaneous  cases 59 


viii  Contents. 

Page 
CHAPTER    V. 

General  Liability  of  Cities 61-G3 

1.  Introductory 61 

2.  Rule 61 

3.  Occasions  of  liability 62 

4.  Subjects  suggested 63 

CHAPTER    VI. 

Who  to  be  Protected,  and  Where 64-71 

A.  Who  to  be  Protected 64-65 

1.  New  York  rule 64 

2.  In  some  States,  travellers  only 65 

B.  The  Locus  in  Quo 66-71 

1.  Introductory 66 

2.  Highway  withia  limits 66 

3.  Place  treated  as  street 66 

4.  Right  to  whole  street 67 

5.  Cross-walk 67 

6.  Side-walk 68 

7.  Access  from  private  property 69 

8.  Bridge  and  approaches 69 

9.  Common  path 70 

10.  Apparent  walk 70 

11.  Place  off  street 70 

CHAPTER     VII. 

Liability,  how  Conferred 72-81 

1.  General  rule.     Charter  conferring  power 72 

2.  Liability  dependent  on  charter 73 

3.  Charters  in  New  York 74 

4.  Corporations  exempt  by  charter 74 

5.  Liability  based  on  agreement 77 

6.  Power  implies  duty 79 


Contents.  1X 

Page 

79 

7.  Theory  of  agency 

8.  Liability  dependent  on  funds 

CHAPTER    VIII. 

82-91 
Public  and  Corporate  Functions 

82 

1.  Dual  powers 

2.  Care  of  streets  a  corporate  duty 

84 

3.  Discretionary  acts 

on 

4.  Negligent  plan 

CO 

5.  Ministerial  acta 

6.  Care  of  excavations,  &c 

7.  (2("/*'i-colTorati°ns 

CHAPTER    IX. 

For  Whose  Acts  Liable 92-10o 

A.  Agents  and  servants "" 

1.  In  general 92 

2.  Ultra  vires 

B.  Independent  Officers  and  Departments 94 

1.  When  city  not  liable 94 

2.  When  city  liable 96 

3.  Respondeat  superior 97 

C.  Independent  Contractors 98 

1.  Work  not  dangerous  98 

2.  Same.    Supervision  of  officer 

3.  Work  dangerous 99 

4.  Rules  subject  to  liability  for  care  of  streets 100 

D.  Licensees 1"- 

1.  License  lawful 102 

2.  Injury  by  mode  of  exercise 102 

3.  License  for  dangerous  thing 103 

4.  Subject  to  duty  to  care  for  streets 103 

E.  Other  Persons 104 

1.  Depends  on  notice 101 

2.  Acceptance  by  city .  105 


Contents. 


CHAPTER    X. 

Proximate  Cause 106-110 

1.  Introductory 106 

2.  Two  proximate  causes 106 

3.  Application  to  city -negligence  cases 106 

4.  Runaway  horses 108 

CHAPTER     XI. 

Degree  of  Care 111-115 

1.  Bound  to  reasonable  care Ill 

2.  Not  insurer Ill 

3.  Public  works 113 

4.  Individuals 113 

5.  Active  vigilance 114 

6.  Care  proportioned  to  danger 114 

CHAPTER    XII. 

Notice 116-130 

1.  Fact  of  obstruction,  not  enough 116 

2.  Obstruction  caused  by  city  or  agents 117 

3.  License  alone  not  notice 118 

4.  Need  of  notice,  generally 118 

5.  Ignorance  itself  negligence 119 

6.  Actual  notice  ;  to  whom  ? 120 

7.  Constructive  notice  sufficient 121 

8.  From  what  inferred 122 

9.  Length  of  time 124 

10.  Latent  defects 128 

11.  Duty  of  city 128 

12.  Statute  fixing  length  of  notice  constitutional. .  130 

13.  Notice  of  particular  defect 130 

14.  No  presumption  of  notice  from  ownership ....  130 


Contents.  xi 

Page 

CHAPTER    XIII. 

Contributory  Negligence 131-157 

1.  General  rule 131 

2.  Proximate  cause 132 

3.  Degree  of  care 132 

4.  Cases  :  Recovery  barred 134 

5.  Presumption  of  safety 136 

6.  Right  to  whole  street 138 

7.  Knowledge  of  defect 139 

8.  Latent  defects 143 

9.  Defective  vision 1-14 

10.  Intoxication 144 

11.  Infant 145 

12.  Imputed  negligence 152 

13.  Imminent  danger 153 

14.  Comparative  negligence  154 

15.  Acts  held  to  not  bar  recovery 155 

16.  Subsequent  carelessness 156 

CHAPTER  XIV. 

Some  Special  Dangers 157-161 

1.  Ice  as  an  obstruction 157 

2.  Injuries  by  coasters 160 

CHAPTER  XV. 

Shifting  Liability.    Recovery  over 162-167 

A.  Shifting  Liability 162-164 

1.  By  ordinance 162 

2.  By  charter 163 

3.  By  contract 164 

4.  Obstruction  by  railroads 164 

B.  Recovery  Over 164-167 

1.  General  rule 164 


xii  Contents. 

Page 

2.  Ground  of  liability  165 

3.  None  against  abutting  owner 166 

4.  Notice 166 


PART  II. 
PRACTICE. 

CHAPTEE  I. 

Statute  of  Limitations 168-172 

1.  Introductory 169 

2.  Action  by  person  injured 169 

3.  Action  for  loss  of  services 170 

4.  Injuries  resulting  in  death 170 

5.  Statute  retroactive 170 

6.  62  How.  Pr.  255 171 

7.  Cohoes  charter 171 

8.  Schenectady  charter 171 

9.  In  Oswego 172 

10.  Limitation  of  notice 172 

CHAPTEE  II. 

Notice  or  Claim 173-184 

A.  New  Yoke  Statute  as  to  Costs 174-176 

1.  Code  Civ.  Pro.  \  2345 174 

2.  Act  of  1859 174 

3.  Adjudications 174 

4.  Does  not  apply  in  actions  for  wrongs 175 

B.  Notice  of  Proposed  Action 177 

1.  Statute 177 

2.  Application 177 

C.  Under  Charters 177-179 

1.  Provisions  illustrated 177 


Contents.  xiii 

Page 

2.  Application 178 

3.  Construed  prospectively 1 '  9 

4.  Under  Buffalo  charter 179 

D.    General  Provisions 179-184 

1.  Introductory 179 

2.  To  whom  presented 179 

3.  What  to  present 180 

4.  Amount  claimed 180 

5.  Contents  of  notice 181 

CHAPTER  III. 

Pleadings 185-189 

A.  The  Complaint 185-189 

1.  Code  requisites   185 

2.  Particular  requisites 186 

3.  Adjudications 187 

B .  The  Answer 186 

CHAPTER  IV. 

Selection  of  Jurors 190-19- 

1.  Introductory 190 

2.  Inhabitants  incompetent  at  common  law 190 

3.  Statutes 191 

4.  Rejection  of  competent  juror 191 

CHAPTER  V. 

The  Plaintiff's  Case 193-196 

1.  Introductory 193 

2.  Incorporation 193 

3.  Duty  as  to  streets 194 

4.  Presentation  of  notices 194 

5.  Locus  in  quo * 

6.  The  defect  or  obstruction 196 

7.  The  iDJury i98 


xiv  Contents. 


8.  Burden  of  proof  of  negligence 198 

9.  Notice \ 

10.  Contributory  negligence  L  See  following  chapters. 

11.  Damages \ 

CHAPTEE  VI. 
Notice 200-204 

A.  Actual  Notice 200-202 

1.  Evidence  competent 200 

2.  Evidence  not  competent 201 

B.  Constructive  Notice 202-204 

1.  Kule 202 

2.  Notoriety 202 

3.  Length  of  time , 203 

4.  Weather  records 203 

5.  Other  accidents 204 

6.  Ordinances 204 

CHAPTEE  VII. 

CONTBTBUTORY  NEGLIGENCE 205-210 

1.  Burden  on  plaintiff 205 

2.  Eule  in  maDy  States 206 

3.  New  York  rule 207 

4.  Circumstances 208 

5.  Evidence  necessary 209 

6.  Wrongful  act 209 

CHAPTEE  VIII. 

Damages 211-229 

A.    Action  by  Peeson  Injubed 212-219 

1.  Fact  of  injury 212 

2.  Speculative  consequences 213 

3.  Measure,  generally 213 

4.  Compensatory  only 213 


Contents.  xv 

Page 

5.  Prospective  damages 214 

6.  Direct  pecuniary  loss -" 

7.  Evidence  of  loss -1" 

8.  Speculative  damages 217 

9.  Double  damages 217 

10.  Physical  and  mental  suffering 217 

11.  Disease  contracted 218 

12.  HI  health  before  injury 218 

13.  Pecuniary  condition 219 

14.  Married  woman 219 

B.  Action  by  Husband  or  Parent 219-220 

1.  Measure  to  husband 219 

2.  Measure  to  parent 220 

C.  Injuries  Causing  Death 220-229 

1.  Introductory 220 

2.  New  York  rule 221 

3.  Pecuniary  damage  only 221 

4.  Loss  to  beneficiaries 222 

5.  Actual  and  prospective 222 

6.  Measure 223 

7.  Elements  and  evidence 223 

8.  Damages  to  parent 225 

9.  Interest 226 

10.  Summary 227 

CHAPTER  IX. 

The  Defendant's  Case 230-234 

1.  Generally 230 

2.  Absence  of  negligence 230 

3.  Absence  of  notice 233 

4   Act  of  plaintiff 233 

5.  Medical  treatment 233 

6.  Predisposition  to  disease 234 

7.  Damages 234 


xvi  Contents. 

Page 
CHAPTER  X. 

Questions  fob  Court  and  foe  Juey 235-239 

1.  Introductory 235 

2.  General  rule 236 

3.  Illustrations 236 

4.  Contributory  negligence  ;  rule 237 

5.  Contributory  negligence  for  jury  ;  cases 238 

6.  Contributory  negligence  ;  when   question   for 

court 238 

7.  Excessive  damages 239 


Foems 241-258 


TABLE    OF    CASES. 


NEW  YORK. 

Page 

Aaron  v.  Second  Ave.  R.  R.  Co 2  Daly,  127 214 

Aberdeen  r.  Blackmar 6  Hill,  324 16G 

Adams  r.  Saratoga,  &c.  R.  R  Co.   .  .11  Barb.  414  ;  10  N.  Y.  328.   50 

Adsit  r.  Brady 4  Ball,  630  34,  35,  80,  81 

Albany  v.  Cunliff. 2  N.  Y.  165 36,  93 

Allison  r.  Middletown 101  N.  Y.  6G7 236 

Anderson  r.  Dickie 20  How.  Pr.  105 26 

Arcber  r.  Sixth  Ave.  R.  R.  Co 52  Super.  378 213 

Atbolf  v.  Wolf 22  N.  Y.  355  4 

Avery  v.  Syracuse 29  Hun,  537 66,  71,  204 

Badeau  v.  Mead 14  Barb.  328 17 

Bailey  v.  New  York 3  Hill,  531 82 

Baine  v.  Rochester 85  N.  Y.  523 17.'.,  176 

Baldwin  r.  Jenkins .1  W.  Dig.  398 50 

Bamber  v.  Rochester 26  Hun,  587 93 

Barney  v.  Dewey 13  Johns.  224 L66 

Barton  v.  Syracuse :  37  Barb.  292  ;  26  N,  Y.  54.72, 83 

Bassett  v.  Fish 75  N.  Y.  303 139 

Bateman  v.  Ruth 3  Daly,  378 139 

Battersby  v.  New  York 7  Daly,  16 112,  113 

Baxter  v.  Warner 6  Hun,  585 26,  35,  41,  100 

Beach  v.  Bay  State  Company 10  Abb.  Pr.  71  ;  30  Barb.  433.  19 

Beckwith  v .  New  York  Central  R.  R. 

Co 64  Barb.  299 218 

B.  [xvii] 


xviii  Table  of  Cases. 


Beers  v.  Pinney .12  Wend.  309 166 

Bennett  v.  Whitney 94  N.  Y,  302 34,  35 

Bernhard  v.  Bensselaer,  &c.  B.R.  Co.l  Abb.  Dec.  131 154 

Bidwell  v.  Murray 40  Hun,  190 91 

Bigler  v.  New  York 5  Abb.  N.  C.  51 95 

Binsse  v.  Wood 37  N.  Y.  526 166 

Birkett  v.  Knickerbocker  Ice  Co. ...  25   W.    Dig.    46  ;    41    Hun, 

504 146,  226 

-Bissell  v.  New  York  Central  B.  B.  Co.23  N.  Y.  61 51 

Blake  v.  Ferris 5  N.  Y.  48 31,  34,  97,  98 

Blakely  v.  Troy .18  Hun,  167 124,  123 

Bliss  v.  Schaub 48  Barb.  339 33 

Bonnell  v.  Jewett 24  Hun,  524 170 

Boom  v.  Utica 2  Barb.  114 93 

Borst  v.  Lake  Shore,  &c.  By.  Co. .  .  .4  Hun,  346  ;  66  N.  Y.  639.  ..237 

Bowen  v.  Borne 23  W.  Dig.  406 10,  239 

Bridgeport  Ins.  Co.  v.  Wilson 34  N.  Y.  275 166 

Bridges  v.  Wyckoff 67  N.  Y.  130 47,  49 

Brignoli  v.  Chicago,  &c.  By.  Co  ...  .4  Daly,   182 205,  216 

Brooklyn  v.  Brooklyn  City  B.  B.  Co.47  N.  Y.  475 164, 165,  167 

Brown  v.  Cayuga,  &c.  B.  B.  Co. . .  .12  N.  Y.  486 26,  27 

Brown  v.  New  York  Central  B.R.  Co.32  N.  Y.  597 152 

Brusso  v.  Buffalo 90  N.  Y.  679. 

31,  66,  67,  89,117.  138,  140,  179 

Buel  v.  New  York  Central  B.  E.  Co. .  31  N.  Y.  314 154 

Buffalo  v.  Holloway Seld.  N.  25  ;  7  N.  Y.  493. 

98,  102,  165 

Buffalo  v.  Yattan ." 1  Buff.  Super.  Ct.  485 78 

Buffalo,  &c.  Turnpike  Co.  v.  Buffalo.  1  T.  &  C.  537  ;  3  T.  &  C.  4  . .   88 

Bullock  v.  New  York 99  N.  Y.  654 3,  139,  140 

Burke  v.  Broadway,  &c.  B.  B.  Co.  .34  How.  Pr.  239 146 

Burmeister,  Re 76  N.  Y.  174 68 

Burmeister  v.  New  York  Elevated  R. 

B.  Co 47  Super.  264 98 

Burns  v.  Dillon 16  W.  Dig.  368 37 

Burns  v.  Schenectady 24  Hun,  10 204 

Bush  v.  Geneva 3  T.  &  C.  409 121 


Table  of  Cases.  six 

Page 

Butler  r.  Rochester 4  Hun,  321 175 

Button  v.  Hudson  River  R.  R.  Co. .  18  N.  Y.  248 207 

Byrne  v.  New  York  Central,  &c.  R. 

R.  Co 83  N.  Y.  2G0  ;  94  N.  Y.  12..50,  150 

Cabot  v.  Kane 1  N.  Y.  St.  R.  495 188 

Cain  v.  Syracuse 29  Hun,  105  ;  95  N.  Y.  83,84,163 

Callahan  v.  Sharp 16  W.  Dig.  505 152,  153 

Campbell  v.  Syracuse 20  W.  Dig.  449 70 

Carolus  v.  New  York 6  Bosw.  15 134 

Carpenter  v.  Blake 75  N.  Y,  12 156 

Carpenter  v.  Buffalo,  &c.  R.  R.  Co.. 38  Hun,  116 223,  225,  227 

Carpenter  v.  Cohoes 81  N.  Y.  21 69 

Carpenter  v.  Gwynn 35  Barb.  395 45,  52 

Carpenter  v.  Shimer 24  Hun,  464 171 

Carroll  v.  Staten  Island  R.  R.  Co.  .  .58  N.  Y.  126 233 

Center  v.  Finney 17  Barb.  94  ;  Seld.  N.  80. . .  .132 

Chanrplin  v.  Penn  Yan 34  Hun,  33 5,  204 

Chapman  p.  New  Haven  R.  R.  Co . .  19  N.  Y.  341 152 

Child  v.  Chappell 9  N.  Y.  240 47,  52 

Childs  v.  West  Troy 23  Hun,  68 ...  .  120,  138,  175,  176 

Chrystal  r.  Troy  &  Boston  R.  R.  Co.  22  W.  Dig.  551 150 

Clancy  v.  Byrne 56  N.  Y.  129 29 

Clare  v.  National  City  Bank 40  Super.  104 99 

Clark  r.  Kirwan 4  E.  D.  Smith,  21 15"> 

Clark  r.  Lockport 49  Barb.  580 73,  123,  143 

Clemence  v.  Auburn 4  Hun,  386  ;  66  N.  Y.  334. 

4,  83,  86,  111 

Clements  v.  West  Troy 16  Barb.   251  ;  10  How.  Pr. 

199 50,  52 

Clifford  r.  Dam 81  N.  Y.  52 26,  30,  31 

Cohen  v.  New  York 33  Hun,  404  ;  43  Hun,  345. 

102,  118 

Cole  r.  Medina 27  Barb.  218 68,  84 

Cole  v.  Yan  Keuren 64  N.  Y.  646 43 

Colegrove  v.  N.  Y.,  &c.  R.  R.  Co.  .  .20  N.  Y.  492 152 

Congreve  v.  Morgan 18  N.  Y.  84 26,  27,  165.  210 

Congreve  r.  Smith 18  N.  Y.  79 26,  27 


xx  Table  of  Cases. 

Page 

Conklin  v.  Thompson 29  Barb.  218 5 

Connery  v.  Slavin 23  W.  Dig.  545 155 

Connors  v.  New  York 11  Hun,  439 95 

Conrad  v.  Ithaca 16  N.  Y.  158 61,  72,  86,  123 

Cook  v.  Harris 61  N.  Y.  448 46,  50,  51,  52 

Codkv.  New  York  Central  R.  R.  Co..  10  Hun,  426;   1  Abb.  Dec. 

432 227,238 

Cooper,  Re 6  W.  Dig.  144 46,  51 

Cordell  v.  New  York  Central,  &c.  R. 

R.  Co 75  N.  Y.  330 198,  205 

Cornwall  v.  Mills 44  Super.  45 221 

Corwin  v.  Corwin 24  Hun,  147 50 

Coulter  v.  Am.  Mer.  Un.  Ex.  Co. . .  .56  N.  Y.  585 154 

Cox  v.  James 45  N.  Y.  557 47 

Cox  v.  New  York  Central  R.  R.  Co.  .11  Hun,  621 10 

Creed  v.  Hartmann 29  N.  Y.  591 26,  37,  38 

Cregin  v.  Brooklyn  Crosstown  R.  R. 

Co 83  N.  Y  595  10,  11 

Crowley  v.  Panama  R.  R.  Co 30  Barb.  99 19 

Cumming  v.  Brooklyn  City  R.  R.  Co.104  N.  Y.  669. 146 

Cummins  v.  Syracuse 3  East.  R.  198  ;  100  N.  Y.  637. 

4,136 

Cunningham  v.  Wright 28  Hun,  178 37 

Curtis  v.  Keesler 14  Barb.  511 .  .45,  46,  49,  52,  53 

Curtis  v.  Rochester,  &o.  R.  R.  Co. .  .18  N.  Y.  534 217 

Cushen  v.  Auburn 32  W.  Dig.  387 162,  163 

Cuyler  v.  Decker 20  Hun,  173 154 

Dalrymple  v.  Oswego 2  W.  Dig.  332 170 

Danaher  v.  Brooklyn 4  Civ.  Pro.  R.  286 24 

Darling  v.  New  York 18  Hun,  340 128,  139,  141 

Davenport  v.  Brooklyn  City  R.  R.  Co. 32  Alb.  L.  J.  516 238 

Davenport  v.  Ruckman 37  N.  Y.  568. 

27,  37,  61,  73, 103,  138,  144,  145 

Davies  v.  New  York 4  Civ.  Pro.  R.  290 93 

Davis  v.  New  York,  &c.  R.  R.  Co.  .  .9  W.  Dig.  522 150 

Day  v.  Crossman 1  Hun,  570 81 


Table  of  Cases.  xxi 

Page 

Debevoise  r.  New  York,  &o.  R.  11.  Co.98  N.  Y.  377 19 

Do  Forest  r.  Utica 69  N.  Y.  614 197,  217 

Delafield  v.  Union  Ferry  Co 10  Bosw.  210  205 

Denipsey  v.  New  York 10  Daly,  117 128 

Denning  v.  Roome 6  Wend.  051 40,  49,  52 

Devenpeck  v.  Lambert 44  Barb,  596 12 

DeWitt  v.  Ithaca 15  Hun.  508 47.  52 

Deyoe  v.  Saratoga  Spr 3  T.  &  O.  504 97, 120 

Dibble  v.  New  York,  &c.  Ry.  Co. . .  .25  Barb.  183 Li:! 

Dickens  v.  New  York  Central  R.   R. 

Co 28  Barb.  41  ;  1  Abb.  Dec.  504. 

19,  223,  238 

Dickinson  v.  New  York 92  N.  Y.  534  ;  28  Hun,  254  ; 

62How.  Pr.255.  07,  109,  171 
Ditcbett  r.  Spuyten  Duyvil,  &o.  R. 

R.  Co 5  Hun,  105  ;  07  N.  Y.  425. . .  144 

Diveny  v.  Elmira 51  IS.  T.  506. 

73,  122,  139,  140,  190,  238 

Dixon  v.  Brooklyn,  &c.  R.  R.  Co.  . .  100  N.  Y.  170 33.  38 

Dongan  v.  Champlain  Trans.  Co 56  N.  Y.  1 197 

Dorau  v.  Troy 22  AV.  Dig.  231 151,  153 

Dorland  v.  New  Y'ork  Central,  <£rc.  R. 

R.  Co 19  W.  Dig.  76 137 

Dorlon  v.  Brooklyn 40  Barb   G04 102,  118,  119 

Dowling  v.  New  York  Central,  &c.  R. 

R.  Co 92  N.  Y.  289 150 

Drake  v.  Gilmore 52  N.  Y.  389 It! 

Dressel  v.  Kingston 32  Hun,  520. 

98,   100,   102,  174,  170 

Drew  v.  Sixth  Ave.  R.  R.  Co 20  N.  Y.  49 151 

Driggs  v.  Phillips 103  N.  Y.  77 52 

Drinkwater  v.  Dinsmore 10  Hun,  250  ;  80  N.  Y.  390. 

210,  217,  234 

Driscoll  v.  New  York 11   Hun,  101 139.  140,  141 

Dubois   v.  Kingston 20  Hun,  500  ;  102  N.  Y.  219, 

8,  136,  171,  204 
Dunham  v.  Canandaigua 13  W.  Dig.  551   139 


xxii  Table  of  Cases. 

Page 

Durkin  v.  Troy 61  Barb.  437 142,  158 

Duryea  v.  New  York 26  Hun,  120 178 

Dyer  v.  Erie  Ey.  Co 71  N.  Y.  228 152,  154 

Dygert  v.  Schenck 23  Wend.  446 26 

Eckert  v.  Long  Island  E.  E.  Co. . .  .43  N.  Y.  502 154 

Edwards  v.  New  York,  &c.  E.  E.  Co. 98  N.  Y.245 27 

Eggleston  v.  Columbia  Turnpike  Co. 82  N.  Y.  278 5 

Ehrgott  v.  New  York 96  N.  Y.  264. 

61,  97,   119,  187,  216,  218 

Eleventh  Avenue,  Ee 49  How.  Er.  208  ;  81  N.  Y. 

436 49 

Ellis   v.  Lowville 7  Lans.  434 68,  80,  81,  194 

Ensign   v.  Livingston  Co.   Supervi- 
sors  25  Hun,  20 77,  78 

Erwin   v.  Neversink,  &c.  Co 23  Hun,  578  ;  88  N.Y.  184.  .227 

Etherington   v.  Prospect  Park,  &c.  E. 

E.  Co 88   N.  Y.  641 221,  222 

Evans  v.  Utica 69  N.  Y.  166.  .111,  116,  139,  140 

Eveleigk   v.  Hounsfield 34  Hun,  140 80 

Evers  v.  Hudson  E.  Bridge  Co 18  Hun,  144 124,  126 

Fallon  v.  Central  Park  E.  E.  Co. .  .64  N.  Y.  13 150 

Filer  v.  New  York  Central  E.  E.  Co .  49  N.  Y.  47 214,  235 

Finklestein  v.  New  York  Central,  &c. 

E.  E.  Co. 41  Hun,  34 150 

Fisher  v.  Cortland 26   W.  Dig.  253 176 

Fitzgerald  v.  Binghamton 40  Hun,  332 76,  208 

Fitzpatrick   v.  Slocum 89  N.  Y.  358 75,  76 

Fitzsimnions  v.  Eome 21  W.  Dig.  343 219 

Flack  v.  Green  Island 23  W.  Dig.  534. .  .45,  49,  51,  52 

Floods  v.  Buffalo,  &c.  E.  E.  Co 23  W.  Dig.  501 151 

Fonda  v.  Borst 2  Abb.  Dec.  155;  2  Keyes,  48. 

48,50 

Ford    v.  Monroe 20  Wend.  210 20 

Foster  v.  N.  Y.  Central,  &c.  E.  E.  Co. 2  How.  Er.  N.  S.  416;  23  W. 

Dig.  18 135 


Table  of  Cases.  xxiii 

Page 

Frasier  v.  Tompkins 30  Hun,  1G8 91 

Fulton  r.  Tucker 5  T.  &  O.  621..  .  .37,  68,  73,  166 

Gage  v.  Hornellsville 21  W.  Dig.  276;  41  Hun,  80 

139,  175 

Galatian  v.  Gardner 7  Johns.  10G 42 

Gale  v.  N.  Y.  Central,  &c.  R.  R.  Co.. 76  N.  Y.  594 2::'.) 

Gardner  v.  Bennett 38  Super.  197 98,  99 

Garlinghouse  r.  Jacobs 29  N.  Y.  297 87 

Garrett  v.  Buffalo 22  W.  Dig.  262  ;  26  Id.  257 

124,  127 

Gaylord  v.  Syracuse,  &c.  R.  R.  Co.  .22  W.  Dig.  396 152 

Gill  v.  Rochester  &  Pittsburgh  K.  R. 

Co 37  Hun.  107 220 

Gillespie  v.  Newburgh 54  N.  Y.  468 238 

Gilligan  v.  N.  Y.  <fc  Harlem R.  R.  Co.l  E.  D.  Smith,  453..  11,  188,  226 

Glendening  v.  Sharp 22  Hun,  78 205,  209 

Goillotel  v.  New  York 87  N.  Y.  441 171 

Goodfellow  v.  New  York 100  N.  Y.  15.. 3,  67,  122,  232,  237 

Gorham  v.  Cooperstown 59  N.  Y.  660 . . .  62,  111,  113,  116 

Gorham  v.  N.  Y.  Central,&cR.  R.  Co.23  Hun,  449 229 

Gould  v.  Glass 19  Barb.  179 53 

Gourdier  v.  Cormack 2  E.  D.  Smith,  254 98 

Gowan  v.  Brooklyn  Crosstown  R.  R. 

Co 2  Mo.  Bui.  12 140 

Grant  v.  Brooklyn 41  Barb.  381 89 

Graves  v.  Otis 2  HiU,  466 68 

Gray  v.  Brooklyn 50  Barb.  3G5  ;  2  Abb.  Dec. 

267 75 

Green  r.  Erie  By.  Co 11  Hun,  333 155 

Green  v.  Hudson  River  R.  R.  Co. .  .28  Barb.  9  ;  2  Keyes,  294  i  2 

Ab.  Dec.  277 21 

GriflSn  v.  New   York 9  N.  Y.  456. 

79,  104,  116,  119,  136 

Grinnell  v.  Kirtland 2  Abb.  N.  C.  886  ;  6   Daly, 

356;  OS  N.  Y.  02'.t..45,  48,  60 
Griswold  v.  New  York  Central  R.  R. 

Co 16  W.  Dig.  358 214 


xxiv  Table  of  Cases. 

Page 

Groth  v.  Washburn 34  Hun,  509 11,  170 

Groves  v.  Kochester 39  Hun,  5 89,  97,  99,  117 

Gubasco  v.  New  York 12  Daly,  192 4,  129 

Gumb  v.  Twenty-third  St.  E.  KCo.l  N.  Y.  St.  E.  715 138,  222 

Hagenlocher  v.  Coney  Island  &  E.E. 

Co 99  N.  Y.  136 212 

Hale   v.  Smith 78  N.  Y.  480 198,  205 

Haley  v.  Earle 30  N.  Y.  208 130 

Halpin  v.  Third  Ave.  E.  E.  Co 40  Super.  175 205 

Ham  v.  New  York 70  N.  Y.  459. 95 

Hanse  v.  Cowing 1  Lans.  288 26 

Hardy  v.  Brooklyn 90  N.  Y.  435  ;  7  Abb.  N.  C. 

403 75,  85 

Harris  v.  Perry 23  Hun,  244  ;  84  N.  Y.  308.  139 

Harris  v.  Uebelhoer 75  N.  Y.  169 144 

Hart  v.  Brooklyn 36  Barb.  226. .  .68, 119,  123,  176 

Hart  v.  Hudson  Eiver  Bridge  Co. .  .80   N.  Y.   622  ;  84  N.  Y.  56. 

199,  205,  208 

Hart  v.  New  York 9  Wend.  571 26 

Hartfield  v.  Eoper 21  Wend.  615 148 

Harvey  v.  New  York,  &c.  E.  E.  Co.  .23  W.  Dig.  198 152 

Hays  v.  Miller .70  N.  Y.  112 236 

Healy  v.  New  York 3  Hun,  708 3,  144 

Hegerich  v.  Keddie 99  N.  Y.  258 19 

Heintze  v.  New  York 50  Super.  295 124,  132 

Heiser  v.  Hatch 86  N.  Y.  614 166 

Helmrich  v.  Hart 16  W.  Dig.  356 154 

Herrington  v.  Corning 51  Barb.  396 93 

Herrington  v.  Lansingburgh 36  Hun,  598 98,  99 

Herrington  v.  Phoenix 41  Hun,  270 119 

Hickok  v.  Plattsburgh 41  Barb.  130 41,  60 

Hildreth  v.  Troy 101  N.  Y.  234 3,  191 

Hiller  v.  Sharon  Springs 28  Hun,  344. .  .  .51,  58,  104,  212 

Hines  v.  Lockport 50  N.  Y.  236. 

3,   67,  73,  79,  80,  81,  83,  89,  231 
Hirsch  v.  Buffalo 21  W.  Dig.  312. . .  .103, 171,  196 


Table  of  Cases.  xxv 

Page 

Hoag  v.  New  York,  &c.   R.  E.  Co. . .21  W.  Dig.  506 205 

Holdane  v.  Cold  Spring 21  N,  Y.   474 45.  48,    50 

Honegsberger  r.  Second  Ave.  Ii.   R. 

Co 2  Abb.  Dec.  379 146 

Hope  v.  Troy,  &c.  R  R.  Co 40  Hun,  438 150 

Houghkirk  v.  Delaware,   &c.  Canal 

Co 92  N.  Y.  219 221,  222,  223 

Hover  r.  Barkhoof 44  N.  Y.  113 34,  35,  80,  81 

Howell  r.  Buffalo 15  N.  Y.  512 176 

Hubbell  r.  Yonkers 35  Han,  349 87,  89 

Huggins  v.  Salamanca 25  W.  Dig.   401  ;  43  Hun. 

633  121 

Hume  v.  New  York 74  N.  Y.  264  ;  47  N.  Y.  639. 

4.  61.  119,  122,  237 

Hunt  v.  New  York 52  Super.  198 62,  104,  119 

Hunter  v.  Sandy  Hill 6  Hill,  407 45,  46,  49,  52 

Hutson  v.  New  York 9  N.  Y.  163 61,  79,   72,  111 

Hyatt  v.  Rondout 44  Barb.  385  ;  41  N.  Y.  619. 

69,  72,  78,  123,  231 

Ihl  v.  Forty-second  St.  R.  R.  Co. . .  .47  N.  Y.  317. 

146,  148, 151,  224,  225 

Ingrabam,  Re 4  Hun,  495  ;  64  N.  Y.  310 ...  51 

Irvine  v.  Wood 51   N  Y.  224 . .  26,  27,  30,  31,  37 

Jennings  ?•.  Van  Scbaick 13  Daly,  510 37 

Jobnson  v.  Hudson  River  R.  R.  Co. 20  N.  Y.  65 208 

Jones  v.  New  York  Central,  &c.  R.  R. 

Co 10  Abb.  N.  C.  200 208,  209 

Jones  ?•.  Utica  &  Black  River  R.  R. 

Co 36  Hun,  115  ;  40  Hun,  349. 

10,  150,  211.  220 

Jordan  v.  Bowen 46  Super.  355 212 

Jordan  v.  Otis 37  Barb.  50 49,  51 

Judson  r.  Olean 40  Hun,  158 17.">.  1 7»i 

Kavanagh  v.  Brooklyn 38  Barb.  232 85 


xxvi  Table  of  Cases. 

Page 

Keller  v.  New  YorkCentral  B.  E.  Co .  7  How.  Pr.  102 18,    19 

Kellogg  v.  New  York  Central  K.  E. 

Co 79  N.  Y.  73 225 

Kelly  v.  New  York 11  N.   Y.  432. ..  .34,  97,  98,  99 

Kennedy  v.  New  York 73  N.  Y.  365 107,  109 

Kennedy  v.  Eyall . .  .67  N.  Y.  379 223 

Kenney  v.   New  York  Central,  &c. 

E.  E.  Co 13  W.  Dig.  61 205,209 

King  v.  Chapin 23  W.  Dig.  528 85 

King  v.  New  York  Central,  &c.  E.  E. 

Co 66  N.  Y.  181 98 

Kinney  v.  Troy 38  Hun,  285. 

124,  126,  127,  159,  202 

Knight  v.  Bath-on-the-Hudson 21  W.  Dig.  301 139 

Knupfle  v.  Knickerbocker  Ice  Co.  .  .84  N.  Y.  488 163 

Koch  v.  Edgewater 14  Hun,  544  ;  18  Hun,  407. 

4,  68,  139,  140 

Kunz  v.  Troy 36  Hun,  615  ;  35  Alb.  L.  J. 

232;  5N.  Y.  St.E.  642. 
3,  64,  95,  124,  129,  150,  156,  201 

Lacour  v.  New  York 3  Duer,  406 88,  89,  100 

La  Duke  v.  Fultonville 20  W.  Dig.  453 80 

Lane  v.  Wheeler 35  Hun,  606 108 

Lavery  v.  Hannigan 52  Super.  463 67,    68 

Lee  v.  Sandy  Hill 40  N.  Y.  442 49 

Lee  v.  Troy  City  Gas-light  Co 98  N.  Y.  115 187 

Leeds  v.  Metropolitan  Gas-light  Co  .90  N.  Y.  26 215 

Lehman  v.  Brooklyn 29  Barb.  234 205,  221,  222 

Leonard  v.  Columbia  Steam  Nav.  Co .  84  N.  Y.  48 20 

Littlewood  v.  New  York 89  N.  Y.  24 23 

Lloyd  v.  New  York 5  N.  Y.  369 82,    85 

Lockwood  v.  New  York 2  Hilton,  66 100 

Lockwood  v.  New  York,  &c.   E.  E. 

Co , 98  N.  Y.  523 224,  225,  226 

Lowery  v.  Manhattan  E.  E.  Co 1  No.  East.  R.  608 154 

Lowhouse  v.  Buffalo 22  W.  Dig.  109 130 


Table  of  Cases.  xxvii 

Page 

Lucas  v.  New  York  Central  R.  R.  Co.  21  Barb.  245 16,    21 

Ludlow  r.  Yonkers 48  Barb.  493 88 

Lynch  v.  Davis 12  How.  Pr.  323 11,  20 

Lynch  v.  New  York 76  N.  Y.  GO 84 

Lyons  v.  Erie  Ry.  Co 57  N.  Y.  489 156,  233 

Macauley  v.  New  York 67  N.  Y.  602 107,  109 

Magee  v.  Troy Not  reported 180 

Mahler  r.  Norwich,  &c.  Trans.  Co.  .35  N.  Y.  352 • 19 

Mairs  r.  Manhattan  Association. . .  .89  N.  Y.  498 30,    33 

Malone  v.  New  York  Central,  <fcc.  R. 

R.  Co 20  W.  Dig.  252 225 

Mangani  r.  Brooklyn  R.  R.  Co 38  N.  Y.  455 145,  150 

Manning  r.  Port  Henry  Iron  Co. . .  .91  N.  Y.  664  227 

Marks  v.  Long  Island  R.  R.  Co. . .  .25  W. Dig.  189 217 

Marsh  r.  Lansingburgh  31  Hun,  514 174 

Martin  v.  New  York 1  Hill.  545 96 

Martin  v.  Tribune  Association 30  Hun,  391 98 

Masterson  v  New  York  Central,  &c. 

R.  R.  Co 84  N.  Y.  246 152 

Masterton  v.  Mount  Vernon 58  N.  Y.  391. 

102,  103,  104,  118,  119,  217 
Matteson  v.  New  York  Central  R.  R. 

Co  62  Barb.  364  ;  35  N.  Y.  487.  214 

Maxmilian  r.  New  York 62  N.  Y.  160. 

77,  78,  82,  84,  95,  97, 100 
McCafferty  r.  Spuyten   Duyvil,  <fce. 

R.  R.  Co 61  N.  Y.  178 98,  100 

McCallum  v.  Long  Island  R.  R.  Co. 38  Hun,  569 152 

McCamus  v.  Citizens'  Gas-light  Co.  .40  Barb.  380 31 

McCarthy  v.  Syracuse 46  N.  Y.  194 73,  89 

McClure  r.  Niagara  Co.  Supervisors .  3  Abb.  Dec.  83 176 

McDermott  v.  Kingston 19  Hun,  198 118,  121 

McDermott  r.  Third  Ave.  R,  R.  Co. 26  W.  Dig.  250 209 

McDonald  v.  Mallory 7  Abb.  N.  0.   84 ;  77   N.  Y. 

546 19 

McGaffin  v.  Cohoes 74  N.  Y.  387 171 


xxviii  Table  of  Cases. 

Page 

McGarry  r.  Loomis 63  N.  Y.  104 64,  65,  146 

McGinity  v.  New  York 5  Duer,  674 104,  116,  119 

McGovern  v.  New  York  Central,  ifcc. 

B.  B.  Co 67  N.  Y.  417. 

21,  150,  151,  225,  226 

McGrath  v.  Hudson  Eiver  E.  E.  Co. 32  Barb.  144 155 

McGuire  v.  Spence 91  N.  Y.  303;  99  N.  Y.  654. 

27,  64,  137,  140,  150,  155,  210 
Mclntyre  v.  New  York  Central,  &c. 

E.  E.  Co 37  N.  Y.  287 224 

McKay  v.  Buffalo 9  Hun,  401  ;  72  N.  Y.  619 

95,  202 

McKenna  v.  New  York 47  Super.  541 119,  163 

McMahon  v.  New  York 33  N.  Y.  642  19 

McMabon  v.  New  York  Elevated  E. 

E.  Co 50  Super.  507 205 

McMalion  v.  Second  Ave.  E.  E.  Co.  11  Hun,  347  ;  75  N.  Y.  231. 

37,  38,  89,  113 

McMannis  v.  Butler 51  Barb.  436  ;  49  Id.  176. 

45,  46,  47,  50,  51,  52,  53,  55,  56,  59 

McMullen  v.  Hoyt 2  Daly,  275 12 

Meigs  v.  Buffalo 23  W.  Dig.  497 10,  220 

Mcrritt  v.  Fitzgibbons 29  Hun,  634  ;  102  N.  Y.  632 .  106 

Metcalf  v.  Baker  11  Ab.  Pr.  N.  S.  431  ;  57  N. 

Y.  662 152,  215 

Miller  v.  McCloskey 1  Civ.  Pro.  252 150 

Mills  v.  Brooklyn 32  N.  Y.  489 83,  85 

Minick  v.  Troy 83  N.  Y.  514 ;  19  Hun,  523. 

3,  134,  181,  210,  239 
Mitchell  r.   New  York  Central,  &c. 

E.  E.  Co 2  Hun,  535  ;  64  N.  Y.  655. .  221 

Monahan  v.  Cohoes 8  W.  Dig.  528  ;  10  Id.  112. 

134,  198 

Monk  v.  New  Utrecht 104  N.  Y.  561 145 

Montfort  v.  Hughes 3  E.  D.  Smith,  591 36 

Moody  v.  Osgood 54  N.  Y.  488;  50  Barb.  628 

208,  216,  219,  237 


Table  of  Casks.  xxix 

Page 
Moore  v.  Birdsall 22  W.  Dig.  530 197 

Moore  v .  Gadsden 87  N.  Y.  84 37 

Morey  v.  Newfane 8  Barb.  645 89 

Morrell  v.  Peck 88  N.  Y.  398 81,  139,  197 

Morrison  v.   New  York  Central,  &o. 

R.  R.  Co 68  N.  T.  643 209 

Morse  v.  Troy 38  N.  Y.  301 57 

Mosey  v.  Troy Gl  Barb.  580 73,  128,  158 

Mosher  v.  Russell 2G  W.  Dig.  234 212 

Mowrey  v.  Central  City  Ry 6G  Barb.  13  ;  51  N.  Y.  GG6  . .  150 

Muller  v.  Decker 19  "W.  Dig.  426 192 

Muller  v.  Newburgh 19  W.  Dig.  550  ;  32  Hun,  24. 

112,  124, 125, 127,  159 

Munger  v.  Tonawanda  R.  R.  Co  . .  .4  N.  Y.  349 131 

Munroe  v.  Third  Ave.  R.  R.  Co 50  Super.  114 237 

Murphey  v.  Buffalo 22  W.  Dig.  284 180 

Murphy  v.  New  York  Central,  <fce.  R. 

R.  Co 88  N.  Y.  445 222 

Nagel  v.  Buffalo 34  Hun,  1 178,  188 

Nash  v.  Sharpe 19  Hun,  365  216 

Neeson  v.  Troy 29  Hun,  173 10 

Nelson  v.  Canisteo 100  N.  Y.  89 71.  232 

Newman  v.  Third  Ave.  R.  R.  Co ....  19  W.  Dig.  500 213 

New  York  r.  Bailey 2  Denio,  433 96,  113,  114 

New  York  v.  Furze 3  Hill,  612 61,  79 

New  York,  &o.  Co.  v.  Brooklyn 71  N.  Y.  C80 96 

Niagara  Falls,  &c.  Co.  v.  Bachman.  .66  N.  Y.  261 44,  45,  50 

Nichols  r.  Brooklyn  City  R.  R.  Co. 30  Hun,  437 212 

Nims  v.  Troy 59  N.  Y.  500 88 

Niven  v.  Rochester 76  N.  Y.  619 . 

51,  97,  111,  163,  232,  238 

Nolan  v.  King 97  N.  Y.  565 30,  31,  32,  113 

Nowell  v.  New  York 52  Super.  382.  .  .4,  182,  208,  209 

Oldfield  r.  New  York,  &o.  R.  R.  Co.  14  N.  Y.  310 12,  19 

O'Hagan  v.  Dillon 42  Super.  456  ;  76  N.  Y.  170. 

144,  199,  204 


xxx  Table  of  Cases. 


Osborn  v.  Union  Ferry  Co 53  Barb.  629 89,  102 

Oswego  v.  Oswego  Canal  Co 6N.Y.  257 51 

Pack  v.  New  York.    8  N.  Y.  222 34,  98,  99 

Palmer  v.  Dearing 93  N.  Y.  7 139,  140 

Parker  v.  Cohoes 10  Hun,  531  ;  74  N.  Y.  610.  .231 

Payne  v.  Troy  &  Boston  B.  B.  Co.  .9  Hun,  526  ;  83  N.  Y.  572. 

197,  236 

Peach  v.  Utica 10  Hun,  477 80,  121, 144 

Pearsall  v.  Hewitt 20  Wend.  Ill ;  22  Id.  559. . .  53 

PearsaU  v.  Post 20  Wend.  Ill 42,  53 

Peck  v.  Batavia 32  Barb.  634 68 

Pendril  v.  Second  Ave.  B.  B.  Co. .  .34  Super.  481 238 

People  v.  Adsit 2  Hill,  619 80 

People  v.  Brooklyn 48  Barb.  211 48 

People  v.  Jewett 3  Wend.  314 192 

People  v.  Kingman 24  N.  Y.  559 60 

People  v.  Lawson 17  Johns.  277 42 

People  v.  Livingston 27  Hun,  105 26,  C3 

People  v.  Loehfelm 102  N.  Y.  1. 47,  51,52 

People  v.  Van  Alstyne 3  Abb.  Dec.  575 60 

People  ex  rel.  Loomis  v.  Little  Val- 
ley  75  N.  Y.  316 90 

People  ex  rel.  Markey  v.  Brooklyn. .  65  N.  Y.  349 103 

Pettengill  v.  Yonkers 25  W.  Dig.  451 97,  122 

Phelps  v.  Wait 30  N.  Y.  78 36,  38 

Phillippi  v.  Wolff. 14  Abb.  Pr.  N.  S.  196 11 

Phillips  v.  Fishkill 26  W.  Dig.  103 139,  237 

Phyfe  v.  Manhattan  By.  Co 30  Hun,  377 217 

Piercy  v.  Averill 37  Hun,  360 77,  88 

Pierrepont  v.  Loveless 72  N.  Y.  211 98 

Platz  v.  Cohoes 89  N.  Y.  219  ;  24   Hun,  101  ; 

8  Abb.  N.  C.  392. 

89,  117,  152,  233 

PoUey  v.  Buffalo 20  W.  Dig.  163 96 

Pomfrey  v.  Saratoga  Springs 34  Hun,  607  ;  104  N.  Y.  459. 

51,  52,  59,  68,  80,  81,  114,  115,  179 
Porter  v.  Attica 33  Hun..  605 45,  53,  58 


Table  of  Cases.  xxxi 

Page 
Port  Jervis  v.  First  National  Bank   .96  N.  Y.  550. 

89,  102,  164,  105,  160 

Post  v.  Pearsall 22  Wend.  125 47 

Prendergast   v.    New  York  Central, 

&c.  R.  R  Co 58  N.  Y.  662 148,  150,  223 

Quin  v.  Moore 15  N.  Y.  432 18,  19 

Quinlan  v.  Utica 11  Hun,  217  ;  74  N.  Y.  003. 

179,  203,  204 
Quinn  v.  Power 29  Hun,  183  ;  87  N.  Y.  5:55 .  .  224 

Radclirfs  Executors  v.  New  York  . .  .4  N.  Y.  195 83 

Ransom  r.  New  York  &  Erie  R.  R.  Co.15  N.  Y.  415 217 

Rebuilding  Bridge,  Re 100  N.  Y.  042 42 

Rector  v.  Pierce 3  T.  &  C.  416 . .  .155 

Reed  v.  New  York 31  Hun,  311  ;  97  N.  Y.  620. 

124,  103,  181,  231 

Rehberg  v.  New  York 91  N.  Y.  137. 

4,  30,  04,  66,  79,  119,  120,  124,  202 

Reich  v.  New  York 12  Daly,  72 128 

Reinhard  v.  New  York 2  Daly,  243 02 

Reining  v.  Buffalo 102  N.  Y.  308 188 

Requa  r.  Rochester 45  N.  Y.  129. 

50,  61,  73,  122,  123,  144 
Reynolds  v.  New  York  Central,  &c. 

B.B.Co 2  T.  &  C.  044  ;  58  N.  Y.  248. 

Us,  150 

Rhinelander,  Re 68  N.  Y.  105 48 

Riceman  v..  Havemeyer 84  N.  Yr.  047 205 

Richard  v.  New  York 48  Super.  315 06 

Ring  v.  Cohoes 77  N.  Y.  83 3,  106,  108,  111 

Roberts  v.  Ogdensburgh,   &c.   R.  R. 

Co 29  Hun,  154 213 

Robinson  v.  Chamberlin 34  N.  Y.  389 34,  35 

Robinson  v.  New  York  Central,  &o. 

R  R  Co 05  Barb.  11  ;  00  N.  Y.  11. 

152,  207 
Rochester  v.  Montgomery 72  N.  Y.  05 104,  167 


sxxii  Table  of  Cases. 

Page 
Rochester  White  Lead  Co.  v.  Roch- 
ester  3  N.  Y.  463.  .82,  85,  88,  113,  232 

Boeder  v.  Ormsby 22  How.  Pr.  270 222 

Roll  v.  Northern  Central  Ry.  Co. . .  .15  Hun,  496  ;  80  N.  Y.  647.  .154 

Rozell  v.  Andrews 103  N.  Y.  150 50 

Rudolphy  v.  Fuchs 44  How  Pr.  155 238 

Russell  v.  Canastota 98  N,  Y.  496 3,  38,  163 

Ryall  v.  Kennedy 40  Super.  347 223 

Ryan  v.  New  York  Central,  &c.  R.  R. 

Co 37  Hun,  186 150 

Ryan  v.  Wilson 87  N.  Y.  471 29 

Ryder  v.  New  York 50  Super.  220 147 

Salter  v.  Utica,  &c.  R.  R.  Co 86  N.  Y.  401 227 

Saulsbury  v.  Ithaca 24  Hun,  12  ;  94  N.  Y.  27. 

3,  84,  111 

Saunders  v.  Townsend 26  Hun,  308 60 

Sauter  v.  New  York  Central,  &c.  R. 

R.  Co 65  N.  Y.  50 224 

Scanlon  v.  New  York 12  Daly,  81 100,  128 

Schindler  v.  New  York,  &c.  R.  R.  Co.l  N.  Y.  St.  R.  289 151,  205 

Schlicting  v.  Wintgen 25  Hun,  626 23 

Schomer  v.  Rochester 15  Abb.  N.  C.  57 51,  69 

Schwandner  v.  Birge 33  Hun,  186 208 

Scott  v.  Wood 18  W.  Dig.  441 152 

Seneca  FaUs  v.  Zalinski 8  Hun,  571 ... .  89,  164,  165,  167 

Sevestre  v.  New  York 47  Super.  341 117,  231 

Sewell  v.  Cohoes 11  Hun,  626  ;  75  N,  Y.  45. 

51,  52,  57,  79,  238 

Sexton  v.  Zett. . . . ; 56  Barb.  119  ;  44  N.  Y.  430. .  33 

Seybolt  v.  New  York,  &c.  R.  R.  Co.  .95  N.  Y.  562 199 

Sheehan  v.  Edgar 58  N.  Y.  631 215 

Shook  v.  Cohoes 23  W.  Dig.  4 122 

Simonin  v.  New  York,  &c.  R.  R.  Co.36  Hun,  214 216 

Smedis  v.  Brooklyn,  &c.  R.  R.  Co. .  .23  Hun,  279  ;  88  N.  Y.  13. .  .208 

Smid  v.  New  York 49  Super.  126 115 

Smith  v.  Brooklyn 36  Hun,  224 124,  125 


Table  of  Cases.  xxxiii 

Page 

Smith  v.  New  York 15  W.  Dig.  103 3 

Smith  v.  New  York CG  N.  Y.  295 119 

Smith  v.  Eochester 76  N.  Y.  50 93,  94 

Smith  v.  Wright 24  Barb.  170 80 

Solomon  v.  Central  Park  E.  R.  Co. .  1  Sweeny,  298 146 

Spaulding  v.  Jarvis 32  Hun,  621 237 

Spooner  v.  D.,  L.  &  W.  E.  E.  Co. .  .1  N.  Y.  St.  E.  558 154 

Staal  v.  Grand  St.,  &c.  E.  E.  Co. . .  .36  Hun,  208 214,  215,  216 

Stackus  r.  New  York  Central,  (fee.  E. 

E.  Co 79  N.  Y.  464 237 

Steivermann  v.  White 48  Super.  523 33,  154,  232 

Still  well  v.  New  York 49  Super.  360. 

3,  111,  112,  194,  204 

Storrs  v.  Utica 17  N.  Y.  104 89,  100,  102 

Strohm  r.  New  York,  &c.  E.  E.  Co.  .96  N.  Y.  305 213,  214 

Strong  v.  Brooklyn 68  N.  Y.  1 57 

Stuebing  v.  Marshall 2  Civ.  Pro.  E.  77 . . .  .22,  23,  225 

Suydarn  v.  Moore 8  Barb.  358 36,  38 

Sweet  v.  Gloversville 12  Hun,  302 118 

Swords  v.  Edgar 59  N.  Y.  28 27 

Taylor  v.  Cohoes 35  A.  L.  J.  357 176 

Taylor  v.  Hopper 2  Hun,  646  ;  62  N.  Y.  649. .  47 

Taylor  v.  Yonkers 26  W.  Dig.  376. 

106,  112,  162,  204 

Terry  v.  Jewett 78  N.  Y.  338 225 

Thieme  v.  Gillen 41  Hun,  443 36 

Thomas  v.  New  York 28  Hun,  110 139,  141 

Thomas  v.  Utica,  .fee.  E.  E.  Co 6  Civ.  Pro.  E.  353  ;  34  Hun, 

626 223 

Thurber  v.  Harlem,  <fec.  E.  E.  Co. .  .60  N.  Y.  326.  .149,  150,  235,  236 

Tice  v.  Munn 94  N.  Y.  621 218 

Tierney  v.  Troy 41  Hun,  120. .  .51,  67,  164,  196 

TiUey  v.  Hudson  Eiver  E.  E.  Co.. .  .24  N.  Y  471 1'.'.  221,  22 1 

Tinkham  v.  New  York N.  Y.  Daily  Eeg.,    Oct.   22, 

1883 231 

Todd  v.  Troy 61  N.  Y.  506 

73,  78,  111,  114,  116,  117,  123,  139,  140,  238 


xxxiv  Table  of  Cases. 

Page 

Tolman  v.  Syracuse,  &c.  E.  E.  Co . .  98  N.  Y.  198 209 

Tone  v.  New  York 70  N.  Y.  157 95 

Toriney  v.  New  York 12  Hun,  542 96 

Tozer  v.  New  York  Central,   &c.  R. 

E  Co 26  W.  Dig.  72 213 

Traver  v.  Eighth  Ave.  R.  R.  Co 4  Abb.  Dec.  422 11,  12 

Troy  v.  Troy,  &c.  R  R.  Co 49  N.  Y.  657 164,  165,  167 

Tweed  v.  Davis 1  Hun,  252 192 

Twogood  v.  New  York 102  N.  Y.  216. 

120,  139,  140,  141,  202 
Twomley  v.  Central  Park,  &c.  R.  R. 

Co 69  N.  Y.  158 154 

Urquhart  v.  Ogdensburgh 91  N.  Y.  67 ;  97  N.  Y.  238. 

4,  8,  85,  86,  127,  187 
Utica  Water  Works  v.  Utica 31  Hun,  426 174 

Vale  v.  Bliss 50  Barb.  358 155 

Van  Alstine  v.  Clyde 17  W.  Dig.  565 143 

Vandercook  v.  Cohoes 12  W.  Dig.  84 139 

Vandeventer  v.  New  York.  &c.  R.  R. 

Co 27  Barb.  244 19 

Van  Ostran  v.  New  York  Central,  &c. 

R.  E.  Co 35  Hun,  590 132 

Van  Vranken  v.  Schenectady 31  Hun,  516. .  .73,  77,  130,  172 

Veeder  v.  Little  Falls 100  N.  Y.  637 4,  59,  69 

Vincent  v.  Brooklyn 31  Hun,  122 75 

Voak  v.  Northern  Central  Ey.  Co . . .  75  N.  Y.  320 154 

Vosper  v.  New  York 49  Super.  296 4 

Waddell  v.  New  York 8  Barb.  95 85 

Walker  v.  Erie  Ey.  Co 63  Barb.  260 , 217 

Walker  v.  Lockport 43  How.  Pr.  366 67,  122 

Wallace  v.  New  York 18  How.  Pr.  169 162 

Walsh  v.  Mead 8  Hun,  387 27 

Walsh  v.  New  York 41  Hun,  299 96 

Wardwell  v.  New  York 1  N.  Y.  St.  E.  784 198 


Table  of  Cases.  xxxv 

Page 
"Warner  r.  New  York   Central  R.  R. 

Co 41  X.  Y.  405 205 

Warren  v.  Clement 24  Hun,  472 80 

Washburn  v.  Mt.  Kisco 35  Hun,  329 71 

Wasmer  v.  Delaware,  &c.  R.  R.  Co.  .80  X.  Y.  212 27 

Watson  r.  Forty-second  St.  R.  R.  Co.93  X.  Y.  522   109,  171 

Watson  r.  Kingston 20  W.  Dig.  15 85 

Weber  v.  Herkimer,  £c.  R.  R.  Co. .  .35  Hun,  44 109 

Webster  r.  Hudson  River  R.  R.  Co . .  38  X.  Y.  200 152 

Weed  v.  Ballston 70  X.  Y.  329. 

73,  78,  81,   111,  119,  122,  129,  139,  231 

Weet  v.  Brockport 10  X.  Y.  101,  note. 

35,  72,  77,  78 

Weidmer  v.  New  York  EL  Ry.  Co.  .41  Hun,  284 199 

Welsh  v.  Wilson 101  X.  Y.  254 7,  114 

Wendell  r.  Xew  York  Central,  kc.  E. 

E.  Co 91  X.  Y.  420 147 

Wendell  v.  Troy 39  Barb.  329  ;  2  Keyes,  201  ; 

4  Abb.  Dec.  503.  .103,  117,  21  i 

Wenzliek  r.  McCotter 87  N.  Y.  122 29 

Whitford  r.  Panama  E.  E.  Co 23  X.  Y.  405 12,   1'.),  11 

Wiggins  r.  Tallmadge 11  Barb.  457 45,  46.  55,  60 

Williams  v.  Buffalo 25  Hun,  301 175.  179 

Williams  r.  Delaware,  &c.  E,  E.  Co.39  Hun,  430 100 

Williams  v.  Syracuse  Iron  Works. .  .31  Hun,  392 238 

Wilson  r.  Xew  York 1  Denio,  595 82,  83.  8"..   LI (2 

Wilson  v.  Watertown 5  T.   &  C.  579  ;  3  Him,  50S. 

.  68,  103 

Wood  v.  Andes 11  Hun.  543 20'J 

Woodward  r.  Washburn 3  Denio,  309 12 

Wolf  v.  Kilpatrick 101  X.  Y.  140 29,  30 

Wolfe  r.  Richmoud  Co.  Supervisee.  19  How.  Pr.  370 1-7 

Woolbridgc  v.  Xew  York 49  How.  Pr.  07 94 

Wooley  v.  Grand  St.,  &c.  R.  R.  Co.  .83  X.  Y.  121 132,   L33 

Woram  v.  Xoble 41  Hun,  398 20.  28 

Wright  r.  Wilcox 19  Wend.  343 30,  38 

Yertore  v.  Wiswall 10  How.  Pr.  8 19 


xxxvi  Table  of  Cases. 


OUTSIDE  NEW  YORK. 

Page 

Abilene  v.  Hendricks  (Kan. ) 13  Pac.  E.  121 197 

Albion  v.  Herrick , . . .  .90  Ind.  545 139,  141 

Albrittin  v.  Huntsville 60  Ala.  4S6 73,  80,  123 

Aldrich  v.  Gorham 77  Me.  287 107,  109 

Aldricb  v.  Tripp 11  K.  I.   14 78 

Alexander  v.  Mt.  Sterling 71   Hi.    366 117 

Altnow  v.  Sibley 30   Minn.    181 90 

Arkadelpbia  v  Windham  (Ark.) 36  Alb.  L.  J.  97 90 

Armstrong  t.  Ackley  (Iowa) 32  No.  W.  R.  780 198 

Aston  v.  Newton 134  Mass.  507 70 

Atchison  v.  King 9  Kan.  553 62,  127,  160 

Atlanta  v.  Perdue 53  Ga.  607 114 

Atlanta  v.  Wilson 59  Ga.  544 4 

Augusta  v.  Hafers 61  Ga.  48 204 

Aurora  v.  Bilner 100  Ind.  396 105 

Aurora  v.  Brown 11  111.  Ap.  122 143 

Aurora  v.  Dale 90  111.  46 139,  141 

Aurora  v.  Pennington 92  III.  564 201 

Bailey  v.  Everett 132  Mass.  441 183 

Baltimore  v.  Marriott 9  Md.  160 161,  162 

Baltimore  v.  O'Donnell 53  Md.  110 100 

Baltimore  Elevator  Co.  v.  Neal  (Md.) .  5  Atl.  R.  338 116,  198 

Baltimore,  &c.  R.   B.   Co.    v.   Kemp 

(Md.) , 30  A.  L.  J.  90 218 

Baltimore,   &c.  R.   R.  Co.  v.    Noell's 

Admr.  (Va.) 32  Gratt.  394 221 

Baltimore  &  Ohio  R.  R.  Co.  v.  State. 60  Md.  449 13 

Barnes  v.  Dist.  Col 91  U.  S.  540 60,  73,  90,  97 

Barnes  v.  Newton 46  Iowa,  567 105 

Bartlett  v.  Bangor 67  Me.  460 47 

Barton  v.  Springfield 110  Mass.  131 154 

Bassett  v.  St  Joseph 53  Mo.  290 107 


Table  of  Cases.  xxxvii 

Page 

Baton  Bouge  v.  Bird 21  La.   An.  244 47 

Bauer  v.  Indianapolis 99  Ind.  56 231 

1  Boaudoan  v.  Cape  Girardeau 71  Mo.  392 40 

Bedford,  &c.  R.  R.  Co.  v.  Eaiubolt.  .  .99  Ind.  501 187 

Benson  v.  Titcomb 72  Me.  31 206 

Benton  v.  Chicago,  &c.  E.  R.  Co. . .  .55  Iowa,  496 226 

Berrccberg  v.  Boston 137  Mass.  231 197 

Bigelow  v.  Randolph  (Masi.) 14  Gray,  541 90 

Bill   r.  Norrick 39  Conn.  222 202 

Billings  r.  Worcester 102  Mass.  329 125 

Blackman  v.  Gardiner  Bridge 75  Me.  214 217 

Blake  v.  Lowell  (Mass.) 9  No.  E.  R.  627 201 

Blodgett  r.  Boston  (Mass.) 8  Allen,  231 65 

Bloomingdale   v.  Chamberlain 104  El.  268 188 

Bloomington  r.  Perdue 99  111.  629 231 

Bohen  v.  Waseca 32  Minn.  176 4,  73 

Bond  v.  Biddeford 75  Me.  538 201 

Booraem  v.  No.  H.  Ey.  Co 39  N.  J.  Eq.  465 51 

Boston  v.  Worthington  (Mass.) 10  Gray,  496 164,  167 

Bovee  v.  Danville 53  Vt  183 206 

Boyd  v.  Ins.  Patrol  of  Philadelphia 

(Pa.) 35  Alb.  L.J.  218 96 

Boyden  v.  Acbenbach 74  N.  C.  539 44 

Brakken  v.  Minneapolis,  &c.  Ey.  Co. 29  Minn.  411 46,  52 

Brannagau  r.  Dist.  Col 2  Mackey,  285 84 

Broburg  v.  Des  Moines 63  Iowa,  523 158,  233 

Brocson  r.  Smithbury 37  Conn.  199 139 

Brown  v.  Chicago,  &c.  Ey.  Co 64  Iowa,  652 217 

Brown  v.  Bowdoinham 61  Me.  144 45 

Brunswick  v.  Braxton 70  Ga.  193 117 

Bunker  r.  Covington 69  Lad.  33 142 

Buesching  v.  St.  Louis,  &c.  Co 73  Mo.  219  ;  6  Mo.  Ap.  .78,  206 

Bunch  v.  Edenton 90  N.  C.  431 71 

Burford  r.  Grand  Eapids  (Mich.) .    .  18   No.    W.   E.     571  ;     29 

A.  L.J.  263 161 

Burr  v.  Plymouth 48  Conn.  460 2 1 3 

Burrill  v.  Augusta  (Me.) 4  East.  E,  615 94 


xxxviii  Table  of  Cases. 

Page 

Burton  v.  Wilmington,  &c.  E.  E.  Co. 82  K  C.  504 223,  224 

Buttrick  v.  Lowell  (Mass.) 1  Allen,  172 95 

Calumet  Iron,  &c.  Co.  v.  Martin  (111.)  .3  No.  E.  E.  456 154 

Calwell  v.  Boone 51  Iowa,  687 161 

Campbell  v.  Still  water 32  Minn.  308  ;  34  A.  L.  J. 

507 103,  164 

Carlisle  v.  Brisbane  (Pa.) 34  A.  L.  J.  507 152 

Catterlin  v.  Frankfort 79  Ind.  547 164 

Centreville  v.  Woods 57  Ind.  192 132 

Chamberlin  v.  Ossipee 60  N.  H.  212 155 

Chapman  v.  Nobleboro 76  Me.  427 181 

Chase  v.  Maine  Cent.  E.  E.  Co 77  Me.  62 209 

Chicago  v.  Bixby 84  El.  82 135 

Chicago  v.  Dalle 115  El.  386 122,  197 

Chicago  v.  Fowler 60  El.  322 122 

Chicago  v.  Hickok  (El.) 17  Bradw 142 

Chicago  v.  Hosorn  (111.) 10  Bradw.  535 215 

Chicago  v.  Eoy 75  El.  530 114 

Chicago  v.  Keefe  (111.) 32  A.  L.  J.  362 65 

Chicago  v.  Kelly 69  111.  475 213 

Chicago  v.  Langlass 52  El.   256 213 

Chicago  v.  McCarthy 75  111.  602 119 

Chicago  v.  McCulloch 10  El.  Ap.  459 124,  225 

Chicago  v.  McGiven 78  111.  347 112,  158 

Chicago  v.  O'Brennan 65  111.  160 219 

Chicago  v.  O'Brien Ill  111.  532 1C3 

Chicago  v.  Powers 42  El.  169 2C4 

Chicago  v.  Bobbins 2  Black,  418 8 

Chicago  v.  Thompson 9  111.  Ap.  524 45 

Chicago  v.  Wright 69    El.  318 43 

Chicago,  &c.  E.  E  Co.  v.  Avery 10  111.  Ap.  210 214,  215 

Chicago,  &c.  Ey.  Co.  v.  Bayfield 37  Mich.  205 225 

Chicago,  &c.  E.  E.  Co.  v.  Clark 108  El.  113 208,  209 

Chicago,  &c.  Ey.  Co.  v.  Dimick 96  111.  42 154 

Chicago,  &c.  E.  E.  Co.  v.  Henry 7  El.  Ap.  322  ;  62  El.  142. 

219,  225 


Table  of  Cases.  xxxix 

Page 

Chicago,  &o.  Ry.  Co.  v.  Moranda 93  HI.  302 225 

Chicago,  &c.  R.  R.  Co.  v.  Murray ....  71  111.  601 149 

Chicago,  A'c.  Ry.  Co.  v.  Payne 59  El  534 154 

Chidsey  v.  Canton 17  Conn.  475 80 

Cincinnati  v.  White G  Peters,  431 53 

Cincinnati,  &c.  R.  R.    Co.    v.    Butler 

(Ind.) 2  No.  E.  R.  138 206 

Circleville  v.  Neuding 41  OhioSt.4G5 100 

Clark  v,  Adair  County 79  Mo.  53G 90 

Clark  v.  Elizabeth 40  N.  J.  L.  172 47 

Clark  v.  Lebanon G3  Me.  393 107,  109 

Cleveland,  &c.  R.  R.  Co.  v.  Manson.  .30  Ohio  St.  451 151 

Cleveland,  &c.  R.  R  Co.  v.  Rowan. .  .06  Pa.  St.  30 206 

Cloughessy  o.  Waterbury 51  Conn.  405 159,  181 

Collins  v.  Davidson 19  Fed.  R.  83 223 

Collins  r.   South  Boston  R.   R.  Co. 

(Mass.) 34  A.  L.  J.  292 150 

Condict  v.  Jersey  City 46  N.  J.  L.  157 95 

Conner  v.  Pioneer,  &c  Co 29  Fed.  R.  629 216 

Cook  v.  Johnson 58  Mich.  437 143 

Cook  v.  Milwaukee 24  Wis.   270 116 

County  Com'rsr.  Burgess  (Ind.). . .  .30  A.  L.  J.  79 206 

Covington  v.  Bryant  (Ky.) 7  Bush,  248 89 

Cramer  v.  Burlington 42  Iowa,  315  ;  45   Iowa,  627  • 

145,  197 

Crawfordsville  v.  Smith 79  Ind.    308 107,  109 

Crete  v.  Childs 11  Neb.    252 156 

Cromarty  v.  Boston 127  Mass.   329 3 

Cronin  v.  Boston 135  Mass.   110 182 

Cumberland  v.  Willison 50  Md.  138 96 

Cusick  v.  Norwich 40  Conn.  375 68, 103,  129 

Daily  v.  Worcester  . .     131  Mass.  452 71 

Dallas,  &c.  R.  R.  Co.  v.  Specker.  ...59  Tex.  435; 62 Tex.  127.  .14,  206 

Dalton  v.  Salem 136  Mass.  278 L83 

Daly  v.  Norwich,  &o.  R.  R.  Co 26  Conn.  591 151 

Daniels  v.  Chicago,  &c.  R.  R.  Co. .  .  .35  Iowa,  129 49 


xl  Table  of  Cases. 

Page 
Daniels  v.  Lebanon 58  N.  H.  284 155 

Dargan  v.  Mobile 31  Ala.  469 95 

Darling  v.  Westmoreland 52  N.  H.  401 204 

Delaney  v.  Milwaukee 33  Wis.  67 236 

Delger  v.  St.  Paul 14  Fed.  E.  567 73,  80 

Delphi  v.  Lowery .74  Ind.  520 204 

Denver  v.  Dunsmore 7  Col.  328 73 

Detroit  v.  Putnam 45  Mich.  263 67,  68 

Dewire  v.  Bailey 131  Mass.  169 Ill,  140 

Dietrich  v.  Northampton 138  Mass.   14 14 

District  of  Columbia  v.  Armes 107  U.  S.  519 204 

Doherty  v.  Waltham  (Mass.) 4  Gray,  596 231 

Donalson  v.  San  Miguel  Co 1  New  Mex.  263 90 

Donnelly  v.  Fall  River 132  Mass.  294 182,  183 

Donoho  v.  Vulcan  Iron  Works 75  Mo.  401  65 

Dooley  v.  Meriden 44  Conn.  117 68 

Dorsey  v.  Racine  60  Wis.  292 188 

Duffy  v.  Dubuque 63  Iowa,  171 71 

Dupree  v.  Cent.  Pac.  R.  R.  Co 7  Pac.  R.  953 132 

Dupuy   v.  Union 46  N  J.  L.  269 68 

Durkee  v.  Cent.  Pac.  Ry.  Co 56  Cal.  388 12 

Dush  v.  Fitzhugh  (Tenn.) 2  Lea,  307 154 

Eagle  Packet  Co.  v.  Defries 94  111.  598 219 

Eastman  v.  Meredith 36  N.  H.  284 83,  90 

Easton  v.  Neff  (Pa.) 29  A.  L.  J.  372 84 

East  St.  Louis  v.  Giblin 3  HI.  App.  219 98 

Eckert  v.  Chicago,  &c.  Ry.  Co 30  No.  W.  R.  615 215 

Edgerly  v.  Concord 59  N.  H.  78,  341 94 

Elgin  v.  Kimball. 90  LI.  356 83 

Elkhart  v.  Ritter 66  Ind.  136 212,  214 

Emporia  v.  Schmidling 33  Kan.  485 140,  197 

Erd  v.  St.  Paul 22  Minn.  443 201 

Erie  v.  Magill 101  Pa.  St.  616 143 

Estelle  v.  Lake  Crystal 27  Minn.  243 103,  140 

Eudora  v.  Miller 30  Kan.  494 69 

Evanston  v.  Gunn 99  U.  S.  660 203 


Table  of  Cases.  xli 

Page 

Fairbury  v.  Rogers 2  111.  Ap.  96 233 

Farrell  v.  Oldtown 69  Me.  72 7 

Fassett  v.  Roxbury 56  Vt.  552 181,  181,  238 

Faulkner  v.  Aurora 85  Ind.  130  ;  27  Alb.  L.  J.  210. 

12,  161 

Ferguson  p.  Davis  County 57  Iowa,  601 36 

Finegan  v.  Moore 46  N.  J.  L.  602   37.  70 

Flagg  v.  Hudson  (Mass.) 34  Alb.  L.  J.  79 4 

Fleming  v.  Lockhaven  (Pa.) 31  Alb.  L.  J.  178 4,  43 

Flynn  v.  San  Francisco,  &c.  R.  R.  Co.40  Cal.  14   132 

Foil  man  p.  Monkato  (Minn.) 34  Alb.  L.J.  391 152 

Fopper  v.  Wheatland 50  Wis.  623 181 

Forbes  v.  Balenseifer 74  HI.  183 51,  52 

Fort  Wayne  v.  Be  Witt 47  Ind.  391 104 

Foster  v.  Boston 127  Mass.  290 121 

Frazer  p.  Lewiston 76  Me.  531 90 

Freeman  v.  Philadelphia 13  Phila.  154   94 

Freeport  v.  Isbell 83  111.  440;  93  111.  381 .  .91,  234 

French  p.  Phila.,  &c.  R.  R.  Co 39  Md.  574 148,  206 

Frick  v .  St.  Louis,  &c.  Ry.  Co 5  Mo.  App.  435 132 

Fritsch  v.  Alleghany 91  Pa.  St.  226 5 

Gagg  v.  Vetter 41  Ind.  228 236 

Galveston  v.  Barbour 62  Tex.  172 221 

Galveston  v.  Posnainsky 62  Tex.  118 107 

Giblin  v.  Mclntyre 2  Utah,  384 215,  217 

Gibson  v.  Johnson 4  111.  Ap.  288 112,  159 

Gilbert  v.  Boston 139  Mass.  313 110 

Gilman  v.  Haley 7  IU.  Ap.    349 218 

Glassey  v.  Hestonville,  &c.  Ry.  Co. 57  Pa.  St.  172 152 

Glantz  r.  South  Bend  (Ind.) 6  No.  E.  R.  632 237 

Gould  p.  McKenna 86  Pa.  St.  297 132 

Gould  v.  Topeka 32  Kan.  485 86 

Government  St.  R.  R.  Co.  p.  Hanlon.53  Ala.  70 119,  151 

Graiber  v.  Derwin 43  Cal.  495 215 

Grand  Rapids,  &c.  Co.  r.  Jarvis  ...  .30  Mich.  308 192 

Greenleaf  p.  Hlinois,  &c.  R.  R.  Co. 29  Iowa,  14 235 


xlii  Table  op  Cases. 

Page 
Greenlee  v.  Tennessee,  &c.  K.  E.  Co . 

(Tenn.) 5 Lea,  418 14 

Griffin  v.  Williamstown 6  W.  Va.  312 62 

Grodin  v.  Des  Moines 55  Iowa,  67 69 

Grogan  v.  Worcester  (Mass.) 2  East.  R.  735  184 

Gunz  v.  Chicago,  &c.  Ry.  Co.  (111.). 25  A.  L.  J.  36 154 

Hanscom  v.  Boston  (Mass.) 33  A.  L.  J.  355 128 

Harkins  v  P.  &  R.  R.  R.  Co 15  Phila.  286 14 

Havana  v.  Biggs 58  HI.  483 60 

Hayes  v.  Cambridge 138  Mass.  461 162 

Hearn  v.  Chicago 20  HI.  Ap.  251 123 

Henderson  v.  Sandef  ur  (Ky.) 11  Bush,  550 84 

Higert  v.  Greencastle 43  Ind.  574 4 

Hill  v.  Boston 122  Mass.  344 83 

Hill  v.  Fond  du  Lac 56  Wis.  242 105 

Hiner  v.  Jeanpert 65  HI.  428 52 

Hobson  v.  New  Mexico,  &c.  Ry.  Co. 

(Ariz.) 11  Pac.  R.  545 206 

Hocum  v.  Weitherick 22  Minn.  152 206 

Holmes  v.  Paris 75  Me.  559 117 

Holt  v.  Wheatley 51  Ala.  569 187 

Holton  v.  Daly 106 111.131;  27  A. L.J. 274. 10,222 

Hopkins  v.  Atlantic,  &c.  R.  R 36  N.  H.  9 11 

Houfei\  Fulton 29  Wis.  296 108 

Houston,  &c.  Ry.  Co.  v.  Boehm 57  Tex.  152 214,  215 

Houston,  &c.  Ry.  Co.  v.  Leslie 57  Tex.  83 218 

Houston  R.  R.  Co.  v.  Simpson 60  Tex.  103 149 

Hoyt  v.  Hudson 41  Wis.  104 206 

Hubbard  v.  Concord 35  N.  H.  52. 140 

Hufft-.  Ames  (Neb.) 30  A.  L.  J.  339 151 

Hughes  v.  Baltimore Taney,  243 84 

Hughes  v.  Muscatine,  &c.  Co 44  Iowa,  672 154 

Huizega  v.  Cutler,  &c.  Lumber  Co.  .51  Mich.  272 213 

Hunt  v.  Salem 121  Mass.   294  236 

Huntingdon,  &c.  R.  R.  Co.  v.  Decker  84  Pa.  St.  419 221,  224 

Huntington  v.  Breen 77  Ind.  29 139,  140 

Hurst  v.  Burnside  (Or.) 8  Pac.  R.  888 132 


Table  of  Cases.  xliii 

Page 

Hussey  v.  Ryan  (Md.) 4  East.  R.  462 65,  155,  220 

Hutchinson  v.  Concord 41  Vt.  271 161 

Illinois  Central  R,  R.  Co.  v.  Cragin .  71  111.  177 115 

Illinois  Cent. R.R. Co. v. Hutchinson. 47  HI.  408 145 

Indiana  Car  Co.  v.  Parker 100  lnd.  181 212 

Indianapolis  v.  Doherty 71  lnd.  5 103,  104 

Indianapolis  v.  Emmelman  (lnd.).  .35  A.  L.  J.  137 33 

Indianapolis  v.  Gaston 58  lnd.  224 68,  137,  219 

Indianapolis  v.  Scott 72  lnd.  196 129.  199 

Indianapolis,  &c.  Ry.  Co.  v.  Pitzer.6  No.  E.  R.  310 225 

Ivens  v.  Cincinnati,  &c.  Co.  (lnd.) .  .2  No.  E.  R.  134 154 

Jacksonville  v.  Drew 19  Flor.  106 102,  164,  232 

James'  adm'x  v.  Harrodsburgh  (Ky.)  35  A.  L.  J.  380 102 

Jaques  v.  Bridgeport  Horse  R.  R . . .  41  Conn.  61 234 

Jeffrey  r.  Keokuk,  &c.  Ry.  Co 56  Iowa,  546  ;  10  No.  E.  R. 

223 139,  141 

Jochem  v.  Robinson  (Wis.) 34  Alb.  L.  J.  456 7 

Johnson  v.  Milwaukee 46  Wis.  568 105 

Joliet  v.  Conway 17  111.  App.  577 140,  219 

Jjliet  v.  Harwood 86  111.  110 100 

Joliet  v.  Henry 11  HI.  App.  154 215 

Joliet  v.  Seward 86  111.  402 104 

Joliet  v.  Walker  7  111.  Ap.  267 128 

Kansas  Pac.  Ry.  Co.  v.  Cutter 19  Kan.  83 221,  224 

Karr  v.  Parkes 40  Cal.  188 154 

Kavanaugh  v.  Janesville 24  Wis.  618 140 

Kelley  ^.Columbia  (Ohio) 31  A.  L.  J.  379 71 

Kennedy  v.  LeVan 23  Minn.  513 52 

Kent  v.  Lincoln 32  Vt.  591 204 

Kenworthy  v.  Ironton 41  Wis.  647 140 

Kenyon  v.  Indianapolis  (lnd.) 1  Wilson,  129 112,  136 

Keokuk  v.  Independent  District 53  Iowa,  352 37 

Keyes  r.  Marcellus  (Mich.) 28  A.  L.  J.  199 71 

Keyes  v.  Minneapolis,   &c,  Ry.  Co. 

(Minn.) 30  No.  W.  R.  888 218 


xliv  Table  of  Cases. 

Page 

King  v.  Thompson 87  Pa.  St.  365 135 

Klatt  v.  Milwaukee 53  Wis.  196 231 

Klein  r.  Jewett 36  N.  J.  Eq.  474 214 

Klein  v.  Thompson 19  Ohio  St.  569 216 

Klein  r.  Cent.  Pac.  B.  E.  Co 37  Cal.  400 132 

Knoxville  v.  Bell  (Tenn.) 12  Lea,  157 62 

Lafayette  v.  Blood 40  Ind.  62 104 

Lafayette  v.  Larson 73  Ind.  367 66 

Lafayette  v.  Timberlake 88  Ind.  330 161 

Lanark  Bank  v.  EitemiUer 14  111.  App.  22 114 

Lancaster  v.  Kissinger  (Pa.)  25  A.  L.  J.  454 132,  133 

Langan  v.  Atchison 11  Pac.  E.  38 ;  35  Kan.  318. 

5,  140 

La  Salle  v.  Thorndike 7  111.  App.  282 219 

Lawrence  v.  Green  (Cal.) 11  Pac.  E,  750 154 

Lemont  v.  Eood 18  111.  App.  245 89 

Lincoln  v.  Walker  (Neb.) 30  A.  L.  J.  406 137,  206 

Lindsey  v.  Danville 46  Vt.  144 11,  220 

Little  v.  Madison 42  Wis.  643 103 

Little  Eock  v.  Willis 27  Ark.  572 83 

Loan  v.  Boston 106  Mass.  450 237 

Logansport  v.  Dick 70  Ind,  65 100 

Logansport  v.  Justice 74  Ind.  378 120,  200 

Lopez  v.  Cent.  Arizona  M'f 'g.  Co ...  1  Ariz.  484 187 

Loser  v.  Humphrey 41  Ohio  St.  378 156 

Louisville,  <fcc.  Canal  Co.  v.  Murphy 

(Ky .) 9  Bush,  522 152 

Louisville,  &o.  Co.  v.  Gower  (Tenn.). 3  So.  W.  E.  824 219 

Louisville,  &c.   Ey.    Co.  ».  Frowley 

(Ind.) 9  No.  E.  E.  594 216 

Louisville,    &c.    Ey.    Co.    v.    Jones 

(Ind.) 9  No.  E.  E.  476 218 

Louisville,  &c.  Ey.  Co.  v.  Shanks. .  .94  Ind.  598 213 

Lovenguth  v.  Bloomington 71  El.  238 135 

Low  v.  Windham 75  Me.  113 184 

Lowell  v.  Short 4  Cush.  273 164 

Lowell  v.  Watertown  (Mich.) 33  Alb.  L.  J.  19 140 


Table  of  Cases.  xlv 

Page 

Luther  v.  Worcester 97  Mass.  268 158 

Lyman  v.  Hampshire  County 138  Mass.  74 182 

Lyon  v.  Cambridge 136  Mass.  419 8,  91 

Mack  v.  Salem 6  Oregon,  275 119 

Macomb  v.  Smithers 6  111.  App.  470 142 

Marion  County  Com'rs.  v.  Brown . .  .89  Ind.  48 139 

Manchester  v.  Ericsson 105  U.  S.  347 67 

Manderschid  v.  Dubuque 39  Iowa,  73 51,  52 

Mansfield,  &c.  Co.  v.  McEnery 91  Pa.  St.  185. .. .  221,  223,  224 

March  v.  Walker 48  Tex.  372 224 

Market  v.  St.  Louis 56  Mo.  189 129 

Mauch  Chunk  r.  Kline 100  Penn.  St.  119. .  127,  158, 160 

Maultby  v.  Leavenworth 28  Kan.  745  139 

Mayhew  r.  Bums  (Ind.) 2  No.  E.  K.  793 143,  225 

Mayo  v.  Boston,  &c.  R.  R 104  Mass.  131 206,  208,  209 

McAuley  v.  Boston 113  Mass.  503 158 

McCabe  v.  Cambridge 134  Mass.  484 179,  181 

McCarthy  v.  Portland 67  Me.  167 65 

McDonough  v.  Virginia  City 6  Nev.  90 89 

McDougal  v.  Boston 134  Mass.  149 183 

McDougall   v.  Central  Pacific  R.  R. 

Co 63Cal.  631 206 

McKenna  v.  St.  Louis 6  Mo.  Ap.  320 94 

McKenzie  v.  Northfield 30  Minn.  456  140 

McLaughlin  v.  Corry 77  Pa.  109 158,  214,  215 

McLaury  r.  McGregor 54  Iowa,  717 135 

McNamara  v.  Clintonville 62  Wis.  207 234 

Mead  v.  New  Haven 40  Conn.  72 85 

Melendy  v.  Bradford 56  Vt.  148 L82 

Merrill  v.  North  Yarmouth  (Me.) .  .  .4  East.  R.  936  ;  3  Atl.  R.  .",7:.. 

198,  206 

Merrill  v.  Portland 4  Clifford  C.  Ct.  138 108 

Messenger  r.  Dennic 137  Mass.  197 148 

Methodist  Episcopal  Church  v.  Ho- 

boken 33  N.  J.  L.  13 50 

Michigan  Cent.  R,  R.  Co.  v.  Coleman .  28  Mich.  440 206 

Millard  v.  Pinard 41  Vt,  34 238 


xlvi  Table  of  Cases. 

Page 

Mississippi  Cent.  E.  E.  Co.  v.  Mason. 51  Miss.  234 132 

Missouri  Pacific  E.  E.  Co.  v.  Lyde.  .57  Tex.  505 , 219 

Momence  v.  Kendall 14  111.  Ap.  229 142 

Monies  v.  Lynn 119  Mass.  273 121 

Monmouth  v.  Sullivan 8  El.  Ap.  50 135 

Monongahela  v.  Fischer  (Pa.) 5  East.  E.  695 131 

Montgomery  v.  Wright 72  Ala.  411 139,  141 

Moore  v.  Minneapolis 19  Minn.  300 105 

Morse  v.  Minnesota,  &c.   E.  E.  Co. 

(Minn.) 28  A.  L.  J.  320 201 

Moss  v.  Burlington 60  Iowa,  438 108 

Mottt'.C.  E.  E.  Co 70  Ga.  680 13 

Mulcairns  v.  Jaynesville 34  Alb.  L.  J.  456 33 

Mullen  v.  Eutland 55  Vt.  77 231 

Murphy  v.  Lowell 128  Mass.  396 86 

Nashville  v.  Brown  (Tenn.) 9  Heisk.  1 101 

Na3hville,  &c.  E.  E.  Co.   v.   Stevens 

(Tenn.) 9  Heisk,  12 221,  223 

Nebraska  City  v.  Campbell 2  Black,  590 79 

Needham  v.  San  Francisco  E.  E.  Co. 37  Cal.  400 132 

New  Jersey  Express  Co.  v.  Nichols.  .33  N.  J.  L.  434 134,  208 

New  York  v.  Sheffield 4  Wall.  189 67 

Niblett  v.  Nashville  (Tenn.) 12  Heisk.  684 188 

Nicholls  v.  Minneapolis 30  Minn.  545 73 

Noble  v.  Eichmond  (Va.) 31  Gratt.  271 187 

Nones  v.  Northouse 46  Vt.  587 215 

Noonan  v.  Lawrence 130  Mass.  161 183 

Norfolk,  &c.  E.  E.  Co.  v.  Ormsby 27  Gratt.  455 151 

North  Vernon  v.  Voegler  (Ind.) 2  No.  E.  E.  82  ;  32  Alb.  L.  J. 

469 86,  88 

Northern  Pa.  E.  E.  Co.  v.  Mahony. .  .57  Pa.  St.  187 151 

Nourse  v.  Victory 51  Vt.  275 183 

Ogle  v.  Pa.  &c.  E.  E.  Co.  (Del.) 3  Houst.  267 52 

Oil  City  Bridge  Co.  v.  Jackson  (Pa.)  36  Alb.  L.  J.  36 152 

Oliver  v.  Kansas  City 69  Mo.  79 105 


Table  of  Oases.  *lvii 

Page 

Oliver  v.  La  Yalle 86  Wis.  592 218 

Omaha  v.  Olmstead 5  Neb.  446 78 

O'Neil  v.  Detroit 50  Mich.  133 G8 

O'Neill  v.  Chicago,  &o.  Ry.  Co 1  McCrary  C.  Ct.  505 236 

O'Neill  r.  New  Orleans 22  La.  An.  part  1,  202 3 

Opsahl  r.  Judd  (Minn.) 27  Alb.  L.  J.  277 233 

Orme  v.  Richmond 79  Ya.  8G 70 

Osage  City  v.  Brown 27  Kan.  74 139, 141 

Otto  v.  Wolf 10G  Pa.  St.  G08 104 

Owen  v.  Brockschmidt 54  Mo.  285 222 

Owen  v.  Chicago 10  111.  Ap.  405 112 

Pacific  B.  B.  Co.  v.  Houts 12  Kan.  328 132 

Paine  v.  Brockton 138  Mass.  504 G9 

Parker  v.  Macon 39  Ga.  725 73 

Parkhill  v.  Brighton 61  Iowa,  103 142,  143,  233 

Parsons  v.  Lindsay 2G  Kan.  420 

Penn  County,  &c.  v.  Marion 2  No.  E.  R.  874 21 

Pennsylvania  Canal  Co.  v.  Bentley  .  .GG  Pa.  St.  30 206 

Pennsylvania  B.  R.  Co.  v.  Bantour.  .54  Pa.  St.  495 -2-J. 

Pennsylvania  B.  B.  Co.  v.  Kelly 31  Pa.  St.  372 12 

Pennsylvania  B.  R.  Co.  r.  Righter .  .42  N.  J.  L.  ISO 23  3 

People  v.  Blake GO  Cal  497 45,  46,  52 

Pequignot  v.  Detroit 10  Fed.  B.  211 68 

Perkins  v.  Fayette G8  Me.  152 108 

Phelps  v.  Monkato 23  Minn.  276 40 

Pierce  v.  New  Bedford 129  Muss.  534 161 

Pierpoint  r.  Harrisville 9  W.  Ya.  215   45 

Pinkham  v.  Topsfield 104  Mass.  78 158 

Pittsburgh  Alley,  Ex  parte 104  Pa.  St.  622 51 

Pittstown  r.  Hart vS9  Pa.  St.  389 109 

Porter  County  Comm'rs  v.  Dombke.94  Ind.  72 122 

Potter  v.  Castleton 53  Yt.  435 TO 

Powers  v.  Chicago 20  111  Ap.  178 1  js 

Prentiss  r.  Boston   112  Mass.  43 lmi 

Priuce  George's  Co.  Comm'rs  p.  Bur- 
gess   63  Md.  29 140 

Providence  v.  Clapp 17  How.  (U.  S.)  1G1..G8,  1. 


xlviii  Table  of  Cases. 

Page 
Pullman,  &c.  Co.  v.  Bluhm 109  111.  20 156,  233 

Quaife  r.  Chicago,  &c.  Ry.  Co 48  Wis.  513 212 

Quincy  r.  Barker 81  HI.  300 135 


Raff  erty  v.  Buckmaa 46  Iowa,  195 223 

Railroad  Co.  v.  Gladmon 15  Wall.  401 206 

Railroad  Co.  v.  Stout 17  Wall.  657 150 

Rains  v.  St.  Louis,  &c.  Ry.  Co 71  Mo.  164 225,  226 

Ray  v.  Manchester 46  N.  H.  59 161 

Raymond  v.  Lowell  (Mass.) 6  Cush.  524 138 

Reed  v.  Belfast 20  Minn.  246 90 

Reed  v.  Chicago,  &c.  R.  R.  Co 57  Iowa,  23 215 

Rice  v.  Evansville  (lnd.) 35  Alb.  L.  J.  138 86 

Ripon  v.  Bettel 30  Wis.  614 201 

Bobbins  v.  Chicago 4  Wall.  657. 

30,  33,  100,  164,  165,  16C 

Roberts  v.  Douglass  (Mass.) 2  East.  R.  114 183 

Robinson  v.  Evansville 87  lnd.  334 94 

Kockford  v.  Hildebrand 61  HI.  155 112 

Rogers  v.  Shirley 74  Me.  144 200 

Rome  v.  Dodd 58  G a.  238 62,  132 

Rosenberg  v.  Des  Moines 41  Iowa,  415 114 

Ross  v.  Thompson 78  lnd.  90 43 

Rozell  v.  Anderson 91  lnd.  591 84 

Ruggles  v.  Nevuda 63  Iowa,  185 197 

Ruland  v.  So.  Newmarket 59  N.  H.  291 238 

Rushville  v.  Poe 85  lnd.  83 187 

Russell  v.  Columbia 74  Mo.  480 103 

Rutter  v.  Missouri  Pacific  Ry.  Co. .  .81  Mo.  169 13 

Salina  v.  Trosper 27  Kan.  544 120,  217 

Sanders  v.  Rolston 1  Dakota,  151 206 

Sargent  v.  Lynn 138  Mass.  599 182 

Savannah  v.  Donnelly 71  Ga.  258 103 

Savory  v.  Haverhill 132  Mass.  324 182,  183 

Scbaefler  v.  Sandusky 33  Ohio  St.  246 142,  143 

Scheffler  v.  Minneapolis,  &c.  Ry.  Co. 32  Minn.  518 223 


Table  of  Cases.  xlix 

Page 

School  District  of  Erie  r.  Fuess  (Pa.)  25  Alb.  L.  J.  136 99 

Schoonmaker  v.  Wilbrabam 110  Mass.  134 231 

Schultz  v.  Chicago,  &c.  Ry.  Co 44  Wis.  638 154 

Schurtz  v.  Milwaukee 49  Wis.  254 161 

Schwarz  r.  Judd 28  Minn.  371 14 

Schweickkardt  v.  St.  Louis 2  Mo.  Ap.  571 119 

Scott  v.  Montgomery 95  Pa.  St.  444 214,  215 

Secord  v.  St.  Paul,  &o.  Ry.  Co 18  Fed.  R.  221 214 

Selina  v  Perkins 68  Ala.  145 73 

Shallow  v.  Salem 136  Mass.  136 182 

Shartle  v.  Minneapolis 17  Minn.  308 51,  73,  80 

Shaw  v.  Waterbury 46  Conn.  263 181 

Shea  v.  Potrero,  &c.  R.  R.  Co 44  Cal.  614 219 

Sheel  v.  Appleton .49  Wis.  125 124 

Sheen  v.  Stothart 29  La.  An.  630 46 

Shepherd  v.  Chelsea  (Mass.) 4  Allen,  113 161 

Sherwood  v.  Dist.  Col 3  Mackey,  276 3 

Sides  v.  Portsmouth 59  N.  H.  24 164 

Siegrist  v.  Arnot 10  Mo.  Ap.  197 154 

Simon  r.  Atlanta  (Ga.) 25  Alb.  L.  J.  477 7 

Simons  v.  Gaynor 89  Ind.  165 139 

Sinclair  v.  Baltimore 59  Md.  592 94 

Slingart  v.  Holliday 2  HI.  Ap.  45 44 

Smith  r.  Sherwood  (Mich.) 34  Alb.  L.  J.  119 5,  204 

Smith  r.  Simmons  (Pa.) 29  Alb.  L.  J.  l&i- 7 

Smyth  v.  Bangor 72  Me.  279 158 

South  &  North  Anna  R.  R.  Co.  v.  Mc- 

Lendon 63  Ala.  266 215,  217 

Spiceland  v.  Alier 96  Ind.  467 187 

Spooner  v.  Freetown 139  Mass.  235 1S-1 

Stack  v.  Portsmouth 52  N.  H.  221 70 

Stafford  v.  Oskaloosa 64  Iowa,  251 214,  216 

Stafford  v.  Rubens  (111.) 3  No.  E.  It.  568 151 

Stanley  v.  Davenport 54  Iowa,  463 5 

Stanton  v.  Springfield 12  Allen,  566 116,  158,  194 

State  v.  Green 41  Iowa,  693 43 

State  v.  Tucker 36  Iowa,  485 43,  l.~>,  ."»1 .  60 

State  v.  Waholz 28  Minn.  114 44 

D 


1  Table  of  Cases. 

Page 

St.  Clair  St.  By.  Co.  v.  Eadie  (Ohio)  32  Alb.  L.  J.  64 152,  153 

St.  Louis,  &c.  Ey.  Co.  v.  Freeman. .  .36  Ark.  41 226 

Steele  v.  Boston 128  Mass.  583 161 

Sterling  v.  Thomas 60  111.  264 73 

Stevenson  v.  Chicago,  &c.  E. E.  Co.  .18  Fed.  E.  493 154 

Stewart  v.  New  Orleans 9  La.  An.  461 95 

Stewart  v.  Eipon 38  Wis.  584 218 

Stone  v.  Evans 32  Minn.  243 11 

Street  v.  Holyoke 105  Mass.  82 124,  158 

Street  E.  E.  Co.  v.  Nolthenius 40  Ohio  St.  376 187 

Strong  v.  Stevens  Point 62  Wis.  255 233 

Sullivan  v.  Oshkosh 55  Wis.  558 236 

Sullivan  v.  State 52  Ind.  309 45,  49,  53 

Sutton  v.  Wauwatosa 29  Wis.  21 233 

Tabor  v.  Graffmiller  (Ind.) 9  No.  E.  E.  721 68 

Taylor  v.  Worcester 130  Mass.  494 183 

Teipel  v.  Hilsendegen 44  Mich.  461 236 

Temperance  Hall  Ass'n  v.  Giles. . .  .33  N.  J.  L.  260 231 

Templeton  v.  Montpelier  (Vt.) 30  A.  l!  J.  358 140 

Texas,  &c.  Ey  Co.  v.  Crowder 63  Tex.  502 208 

Texas,  &c.  E.  E.  Co.  v.  Murphy 47  Tex.  356 187 

Thorogood  v.  Bryan 8  Com.  B.  115 152 

Thurber  v.  Eailroad 60  Ind.  333 148 

Toolan  v.  Lansing 38  Mich.  315 84 

Trauter  v.  Sacramento 61  Cal.  271 90 

Trowbridge  v.  Forepaugh 14  Minn.  133 38 

Tuttle  v.  Farmiugton 58  N.  H.  13 233 

Tuttle  v.  Winchester 50  Conn.  496   181 

Tyler  v.  Sturdy. 108  Mass.  196 60 

Varney  v.  Manchester 58  N.  H.  430 65 

Varnham  v.  Council  Bluffs 52  Iowa,  698 202,  216 

Veale  v.  Boston 135  Mass.  187 43 

Vicksburgh  v.  Hennessey 54  Miss.  391 135 

Wadleigh  v.  Mt.  Vernon 75  Me.  79 184 

Walker  v.  Erie  E.  E.  Co 63  Barb.  260 216 


Table  of  Cases.  li 

Page 
Walrath  >:  Whittekind 26  Kan.  482 213 

Walsh  v.  Mississippi,  &c.  Co 52  Mo.  434 132 

Wardle  v.  New  Orleans  City  R.  R.  Co.35  La.  An.  202 214 

Warner  v.  Holyoke 112  Mass.  332 70 

Warren  r.  Wright 3  111.  Ap.  602 112 

Water  Company  v.  Ware 10  Wall.  5G6 98 

Watson  r.  Tripp 11  R.  I.  98 101 

Weisenberg  v.  Appleton 26  Wis.  56 214 

Welch  v.  Portland 77  Me.  384 201 

Welsh  v.  Rutland 56  Vt.  288  ;  30  A.  L.  J.  163. 

83,  94 

Welsh  r.  St.  Louis 73  Mo.  71  ;  25  A.  L.  J.  137.102 

Wentworth  v.  Summit 60  Wis.  281 188 

Whirley  v.  Whiteman  (Tenn.) 1  Head,  610 151 

Wkitaker  v.  Warren 60  N.  H.  20 12 

White  v.  Chowan  Co.  Comm'rs 90  N.  C.  437 90 

White  r.  Stowe 54  Yt.  510 183 

Wilcox  v.  Chicago 107  III.  334  ;  29  A.  L.  J.  37.   (J4 

Wild  v.  Paterson  (N.  J.) 2  East.  R.  808. 94 

Williams  v.  Grand  Rapids  (Mich.). .  .33  A.  L.  J.  236 8,  84 

Wilson  r.  Atlanta 60  Ga.  473;  63  Id.  291 106 

Wilson  v.  Charlestown  (Mass.) 8  Allen,  137 136 

Wilson  v.  Granby 47  Conn.  59 143 

Wilson  v.  Sexon 27  Iowa,  15 112,  213 

Wilson  v .  Trafalgar,  &c.  Gravel  Road 

Co 93  Ind.  287 139,  140 

Wilson  r.  Wheeling 19  W.  Va.  323 102,  213 

Winbigler  v.  Los  Angeles 45  Cal.  36 90 

Woodcock  v.  Worcester 138  Mass.  268 203 

Wright  r.  Templeton 132  Mass.  49 144 

Wyandotte  v.  Gibson 25  Kan.  236 4 

Wyandotte  v.  White 13  Kan.  191 180 

Yeager  v.  Tippecanoe 81  Ind.  46 90 

Young  v.  Dist.  Col 3  MacA.  137. 71 

Zettler  v.  Atlanta 66  Ga.  195 142 


CITY- NEGLIGENCE  BRIEF. 


PART  I. 

LAW. 


CHAPTER  I. 

INTRODUCTORY. 

1.  Scope  and  limitations. 

2.  Sources  of  danger  to  travelers. 

3.  Injuries  without  remedy. 

1.  Scope  and  limitations  of  proposed  subject.  One  who  is 
injured  in  person  or  property  on  the  public  highway 
naturally  has  his  attention  turned  to  these  three  ques- 
tions : 

Have  I  a  remedy  ? 

Against  whom  may  I  enforce  it  ? 

How  shall  I  proceed  ? 

Some  examination  of  these  questions  is  here  proposed; 
not,  however,  in  detail  as  to  every  class  of  offenders  or 
every  locality  or  jurisdiction. 

1 


2  Law. 

The  primary  subject  of  investigation  will  be  the  rights 
and  remedies : 

of  persons  sustaining  loss  or  injury, 
by  reason  of  wrongful  or  negligent  mismanage- 
ment of  highways, 
by  municipal  corporations, 
in  the  State  of  New  York. 

To  that  extent  only  will  any  pretense  of  exhaustive 
treatment  be  made. 

Incidentally,  however,  there  will  also  be  considered  to 
some  extent : 

(a)  The  liability  of  persons  or  corporations,  other 
than  the  municipalities  themselves,  by  whose  fault  streets 
are  rendered  unsafe. 

(b)  The  liability  of  quasi  corporations,  as  counties 
and  towns,  or  officers  thereof,  on  whom  rest  a  statutory 
obligation  to  keep  highways  safe  for  travel,  and  a  statu- 
tory liability  to  persons  injured. 

(c)  The  rights  and  remedies  of  travellers  on  highways 
outside  the  State  of  New  York. 


2.  Sources  of  danger  to  travellers.  It  is  quite  unneces- 
sary to  dwell  on  the  variety  of  objects  and  occurrences 
which  may  become  sources  of  mishap  upon  highways, 
and  may  be  included  within  the  generic  terms  "  obstruc- 
tion" and  "defect. " 

Judging  from  reported  cases,  the  trenches  which  are 
so  frequently  and  necessarily  opened   in  the  streets   of 


Introductory.  3 

cities,  for  the  purpose  of  laying  water,  gas,  sewer  and 
other  pipes,  and  the  aggregation  of  ice  and  snow  which 
accompanies  the  northern  climate,  are  responsible  for  fl 
large  share  of  the  injuries  sustained  by  those  who  use 
the  streets  of  cities  and  villages. 

In  addition  to  these,  may  be  merely  mentioned  at  this 
point  various  others,  taken  at  random  from  the  reports. 

(a)  Actual  obstructions,  as 

Heaps  of  ashes, 

Ring  v.  Cohoes,  77  N.  Y.  83. 

Counter  on  sidewalk, 

Kunz  v.  Troy,  (N.Y.  Ct.  App.)  35  Alb.  L.  J.  232. 

(b)  Actual  defects,  as 

Broken,  misplaced,  or  uneven  curb  or  flag-stones, 
or  pavements,  holes  in  streets,  &C. 

Healy  v.  New  York,  3  Hun,  708. 
Saulsbury  v.  Ithaca,  91  N.  Y  27. 
Goodfellow  v.  New  York,  100  N.  Y.  15. 
O'Neill  v.  New  Orleans,  30  La.  An.  part  1,  202. 
Hildreth  r.  Troy,  101  N.Y.  234. 
Bullock  v.  New  York,  99  N.Y.  654. 
Hines  r.  Lockport,  50  N.Y.  236. 
Russell  v.  Canastota,  98  N.Y.  496. 
Minick  v.  Troy,  83  N.Y.  514. 

Decayed  platform  over  welU1)  or  displaced(')  or 
slippery(3)  vault  cover. 

O  Sherwood  v.  District  of  Columbia,  3  Mackey.  -7f>. 
(-)  Smith  r.  New  York,  15  W.  Dig.  103. 
(3)  Stillwell  r.  New  York,  49  Super.  3o0. 
Cromarty  v.  Boston,  127  Mass.  329. 


Law. 


(c)     Unguarded  embankments, 


Flagg  v.  Hudson,  (Mass.)  34  Alb.  L.  J.  279. 
Wyandotte  v.  Gibson,  25  Kan.  236. 
Atlanta  v.  Wilson,  59  Ga.  544. 
Nowell  v.  New  York,  52  Super.  382. 
Cummins  v.  Syracuse,  100  N.Y.  637 
Veeder  v.  Little  Falls,  Id.  343. 


(d)     Abrupt  change  of  grade  of  side-walk, 

Koch  v.  Edgewater,  14  Hun,  544. 
Urquhart  v.  Ogdensburg,  97  N.  Y.  238. 
Higert  v.  Greencastle,  43  Ind.  574. 
Clemence  v.  Auburn,  4  Hun,  386  ;  66  N.  Y.  334. 


(e)     Objects  thrown  or  falling  from  above,  as 
Ice  and  snow  thrown  from  roof, 
Atholf  v.  Wolf,  22  N.  Y.  355. 

Or  falling  from  slide  leading  to  ice-house, 

Fleming  v.  Locknaven,  (Pa.)  31  Alb.  L.  J.  178. 

Falling  trees, 

Vosper  v.  New  York,  49  Super.  296. 
Gubasco  v.  New  York,  12  Daly,  192. 

Falling  brick, 

Kehberg  v.  New  York,  91  N.  Y.  137. 


Falling  awnings, 


Hume  v.  New  York,  74  N.  Y.  264. 
Bolien  v.  Waseca,  32  Minn.  176. 


Introductory. 

Or  bill-boards, 

Langan  r.  Atchison,  35  Kansas,  318. 

(h)     Causes  of  fright  to  horses,  as 

Heaps  of  stono 

Eggleston  r.  Columbia  T.  Co.,  82  N.  Y.  278. 

Banners, 

Champlin  r.  Penn  Yan,  34  Hun,  33. 

Hole  in  bridge, 

Smith  v.  Sherwood,  (Mich.)  34  Alb.  L.  J.  119. 

Steam  motors, 

Stanley  v.  Davenport,  54  Iowa,  463. 

Fire-works, 

Conklin  r.  Thompson,  29  Barb.  218. 

Carcass  of  horse, 

Fritsch  v.  Allegheny,  91  Pa.  St.  226. 


For  injuries  arising  from  all  these,  and  numberless 
other  sources  of  danger,  municipal  corporations,  as  well 
as  others,  may,  under  proper  circumstances,  be  liable 
to  those  damaged  thereby. 

The  very  large  class  of  "running-down  cases  "  is  pur- 
posely omitted  from    the   above   enumeration ;  they  have 


6  Law. 

their  origin  in  dangers  which  can  in  no  sense  be  called 
obstructions  or  defects,  and  for  which  municipal  corpora- 
tions are  not  ordinarily  responsible. 


3.  Injuries  without  remedy.  Nor  can  it  be  useful  to 
more  than  call  attention  to  the  fact  that  many  injuries 
sustained  on  highways  are  and  must  be  without  rem- 
edy. In  addition  to  the  many  accidents  which  happen 
daily,  and  for  which  no  one  dreams  of  holding  any  one 
responsible,  four  classes  of  cases  may  be  mentioned 
under  this  head  :  Thus, 


(a)  The  exigencies  of  business  and  building,  and  the 
pleasure,  convenience  and  even  safety  of  the  public, 
require  more  or  less  obstruction  of  the  streets ;  and  for 
such  reasonable  and  temporary  obstruction,  in  absence  of 
negligence,  there  can  be  no  liability. 

"Necessity  justifies  many  actions  which  would  other- 
wise be  nuisances.  No  one  has  the  right  to  throw  wood  or 
stones  in  the  street  at  his  pleasure  ;  nevertheless,  as  build- 
ing is  necessary,  building  materials  may  be  laid  therein 
for  a  reasonable  time  and  in  a  convenient  manner.  So 
may  a  merchant  occupy  the  street  with  his  goods ;  in  a 
like  manner  may  the  common  highways  be  temporarily 
opened  for  the  purpose  of  building  vaults  under  them, 
or,  under  like  regulations,  private  drains  may  be  con- 
nected with  the  common  sewers  or  gutlers,  or  houses  and 
other  buildings  with  the  streets,  by  alleys,  door-steps  and 
the  like.  By  such  things  as  these,  and  many  others, 
which   are  justified   by  necessity  or  custom,   may  pub- 


Introductory.  7 

lie     highways     be     occupied      temporarily     or     perma- 
nently. " 

Smith  v.  Simmons,  (Pa.)  29  A.  L.  J.  109. 

Of  a  merchant,  who,  for  the  purpose  of  removing  mer- 
chandise, placed  a  pair  of  skids  across  the  side-walk  to 
the  steps  of  his  store,  the  court  say  :  "The  defendant  had 
the  right  to  place  the  skids  across  the  side-walk  tempo- 
rarily, for  the  purpose  of  removing  the  cases  of  merchan- 
dise. Every  one  doing  business  along  a  street  in  a  pop- 
ulous city  must  have  such  a  right,  to  be  exercised  in  a 
reasonable  manner,  so  as  not  to  unnecessarily  encumber 
and  obstruct  the  side-walk.  " 

Welsh  v.  Wilson,  101  N.  Y.  254. 

Though  whether  placing  skids  across  a  walk  in  a 
particular  case  is  reasonable  is  for  the  jury  to  determine. 

Jochem  v.  Eobinson,  (Wis.)  34  Alb.  L.  J.  456. 

So  it  has  been  held  in  Georgia,  that  stretching  ropes 
across  a  street  during  a  firemen's  parade,  for  the  public 
safety  and  convenience,  is  a  temporary  and  reasonable 
obstruction,  for  which  a  city  would  not  be  liable. 

Simon  v.  Atlanta,  (Ga.)  25  A.  L.  J.  477. 

And  in  Maine,  that  blocks  left  a  few  hours  in  the  street, 
for  the  purpose  of  repairing  it,  are  of  the  same  class. 

Farrell  v.  Oldtown,  69  Me.  72. 

And  in  New  York,  that  a  stepping-stone  in  front  of  a 
public  building,  for  the  accommodation  of  the  public,  is 


8  Law. 

allowable,  and  no  liability  is  incurred  for  an  injury  caused 

by  it. 

Dubois  v.  Kingston,  102  N.  Y.  219. 

(b)  So  also,  in  general,  all  injuries  are  remediless 
which  are  caused  by  objects  or  obstructions  not  wrong- 
fully or  negligently  made  or  continued,  with  knowledge 
or  notice  of  which  those  having  a  duty  to  make  the  high- 
way safe  cannot  be  charged. 

(c)  Those,  also,  to  which  the  want  of  care  of  the  per- 
son injured  contributed  in  whole  or  in  part. 


(d)  And  those  caused  by  the  action  of  municipal  cor- 
porations, in  the  exercise  of  their  judicial  or  discretion- 
ary power  ;  for  instance, 

In  the  location  and  plan  of  streets,  side-walks 
and  cross-walks, 

Urquhart  v.  Ogdensburgh,  91  N.  Y.  67. 
Williams  v.  Grand  Rapids,  (Mich.)  S3  Alb.  L.  J. 
236. 

Or  location  of  street  lamps. 

Lyon  v.  Cambridge,  136  Mass.  419. 

Some  of  the  principles  thus  alluded  to  and  decisions 
cited,  by  way  of  illustration,  may  be  considered  more 
fully  hereafter. 


CHAPTER  II. 

WHO  MAY  SUE. 

A.  Person  Directly  Injured. 

1.  Kule. 

2.  Abatement. 

B.  Husband. 

1.  Eule. 

2.  Abatement.    Revival. 

3.  Death  of  wife. 

C.  Parent. 

1.  Rule. 

2.  Adopted  child. 

3.  Child's  separate  action. 

D.  Master. 

E.  Injuries  resulting  rN  Death. 

1.  Generally. 

2.  Outside  New  York. 

F.  Injuries  resulting  in  Death-  New  York. 

.    1.  Act  of  1847. 

2.  Amendment  of  1849. 

3.  Amendment  of  1870. 

4.  Code  Civ.  Pro. 

5.  Relation  of  decedent  to  beneficiary. 

6.  Existence  of  widow  or  next  of  kin. 

7.  Fact  of  damage. 

8.  Abatement. 

9.  Extra-territorial  effect. 

10.  Common-law  right  of  husband  or  parent. 

11.  Bar  by  act  of  parent. 

12.  Bar  by  act  of  decedent. 

13.  Joinder  of  actions. 


10  Law. 

[In  this,  as  well  as  other  chapters,  the  principles  stated  and  illus- 
trated apply  not  only  to  the  class  of  actions  particularly  under  con- 
sideration, but  to  other  similar  actions.] 


A.    Person  Directly  Injured. 

1.  Rule.  The  person  directly  injured  may  of  course  seek  Ms 
remedy  in  the  courts. 

This  is  wholly  independent  of  any  cause  of  action 
which  may  accrue  to  any  one  whose  interest  is  indirect. 

A  former  judgment  in  favor  of  the  wife  is  not,  in  an 
action  by  the  husband,  conclusive  upon  the  question  of 
negligence. 

Neeson  v.  Troy,  29  Hun,  173. 

2.  Abatement.  The  cause  of  action  of  the  person  directly 
injured  does  not  survive  to  his  personal  representatives. 

Holton  v.  Daly,  106  111.  131 ;  27  Alb.  L.  J.  274. 
Although  it  may  be  kept  alive  by  prior  stipulation. 

Cox  v.  New  York  C.  E.  R.  Co.,  11  Hun,  621. 
And  does  not  abate  after  verdict,  report  or  decision. 

Code  Civ.  Pro.  g  764. 

B.    Husband. 

1.  Rule.  In  case  of  personal  injury  to  a  married  ivoman, 
her  husband  may  maintain  an  action  for  care  and  attendance 
and  loss  of  services  and  society. 

Cregin  v.  Brooklyn  Crosstown  R.R.  Co.,  83  N.Y.  595. 
Jones  v.  Utica  &  B.  E.  E.  R.  Co.,  40  Hun,  349. 
Meigs  v.  Buffalo,  23  Week.  Dig.  497. 
Bowen  v.  Borne,  Id.  406. 


Who  may  Sue.  11 

Groth  r.  Washburn,  34  Hun,  509. 
Lynch  v.  Davis,  12  How.  Pr.  323. 
Philippi  r.  Wolff,  14  Abb.  Pr.  N.  S.  196. 
Hopkins  v.  Atlantic  and  St.  L.  P».  R.,  36  N.  H.9. 
Lindsey  v.  Danville,  46  Vt.  144. 
Stone  v.  Evans,  32  Minn.  243. 


2.  Abatement.  Revival.  Though  grounded  in  tort,  the  hus- 
band's action  for  injury  to  his  wife  abates  on  hie  death  only  as 
to  the  loss  of  society.  As  to  the  pecuniary  loss,  if  may  he  revived 
in  the  name  of  the  personal  representatives,  under  2  N.  Y.  Rev. 
St.  447. 

Cregin  v.  Brooklyn  Crosstown  R.  R.  Co.,  83N.Y.  595. 

3.  Death  of  wife.  In  case  the  wife  die  as  the  result  of 
her  injuries,  there  seems  to  be  in  New  York  some  conflict 
of  authority  as  to  the  husband's  common-law  right  of 
action.     This  will  be  considered  later.     (See  page  20.) 

At  any  rate,  the  husband  may  maintain  the  action  if 
his  wife's  death  was  not  immediate,  so  that  he  was  de- 
prived of  her  society  and  assistance  even  for  a  brief 
period  between  the  injury  and  her  death. 

Philippi  v.  Wolff,  14  Abb.  Pr.  N.  S.  196. 


C.    Parent. 

1.  Rule.  The  father,  or  if  he  be  not  living,  the  mother,  has  an 
action  for  care  and  attendance  and  loss  of  services  caused  by  the 
wrongful  or  negligent  injury  of  a  child. 

Traver  r.  Eighth  Ave.  R.  R.  Co.,  4  Abb.  Dec.  422. 
Gilligan  v.  N.  Y.  and  Harlem  R.  R.  Co.,  1  E.  D. 
Smith,  453. 


12  Law. 


Whitaker  v.  Warren,  60  N.  H.  20. 
Pennsylvania  E.  E.  Co.  v.  Kelly,  31  Penn.  St.  372. 
Faulkner  v.  Aurora,  (Indiana)  27  Alb.  L.  J.  210. 
Durkee  v.  Cent.  Pac.  E.  E.  Co.,  56  Cal.  388. 


2.  Adopted  child.  In  Whitaker  v.  Warren  the  child  was 
that  of  the  plaintiff  only  by  adoption,  and  that  not  legal. 

3.  Child's  separate  action.  In  Traver  v.  Eighth  Ave.  K.  R. 
Co.,  held,  that  the  child  might  also  recover  for  any  expense 
and  inability  to  work  if  it  extended  beyond  his  minority. 

D.    Master. 

"  It  is  a  general  principle  that  an  action  lies  for  an 
injury  done  to  his  slave,  servant,  apprentice,  ...  in  favor 
of  the  person  who  stands  in  place  of  a  parent,  by  reason 
of  which  he  has  sustained  a  loss  of  service,  or  been  put  to 
expense  in  nursing  or  providing  medicines." 

Woodward  v.  Washburn,  3  Denio,  369,  at  p.  371. 

This  case  was  one  for  imprisonment  of  a  hired  servant. 
It  is  cited  as  authoritative  in  McMullen  v.  Hoyt,  2 
Daly,  at  page  275.  The  rule,  as  above  quoted,  is  compre- 
hensive in  its  terms,  and  seems  to  be  laid  down  as  well- 
settled  law. 

E.    Injuries  Resulting  in  Death. 

1.  Generally.    At  common  law,  the  right  to  maintain  an  action 
for  personal  injuries  died  with  the  person. 

Oldfield  v.  N.  Y.  &  H.  E.  E.  Co.,  14  N.  Y.  310,  at 

p.  316. 
Whitford  v.  Panama  E.  E.  Co.,  23  N.  Y  465,  at  p.  476. 


Injuries  resulting  in  Death.  13 

In  case  the  injuries  result  in  death,  there  is  in  probably 
every  State  and  jurisdiction  a  statutory  cause  of  action 
accruing  to  some  person  or  class  of  persons.  These  statutes 
differ  in  many  particulars,  but  chiefly  in  prescribing  v.  Ik. 
may  bring  the  action ;  in  some  the  right  being  giving  to 
the  personal  representative  for  the  benefit  of  specified 
persons,  in  others  directly  to  the  next  of  kin  or  other 
beneficiary. 


2.  Outside  New  York.  No  attempt  will  be  made  to 
examine  or  classify  these  different  statutes.  It  may  be 
noticed,  however,  by  way  of  illustration,  that  in  the  fol- 
lowing States  the  action  must  be  brought  by  the  personal 
representative,  viz.:  Massachusetts,  Minnesota,  Nebraska, 
Oregon.  While  in  the  following  States  the  action  accrues 
directly  to  the  persons  beneficially  interested,  viz.:  Cali- 
fornia, Georgia,  Illinois,  Maryland,  Missouri,  Pennsyl- 
vania, Tennessee,  Texas. 

Under  the  statutes  of  different  States  the  following 
adjudications  may  be  of  interest  and  use. 

In  Maryland,  where  the  child  has  a  cause  of  action  for 

the  death  of  the  parent,  held,  that  an  adult  child  may 

recover. 

'  B.  &  O.  R.  R.  Co.  v.  State,  60  Md.  449. 

Contra,  in  Georgia. 

Mott  v.  Central  R.  R.  Co.,  70  Ga.  680. 

In  Missouri,  where  minor  children  may  sue  within  a 
year,  held,  that  the  child  may  sue  within  the  year,  though 
he  have  meantime  become  of  age. 

Rutter  v.  Mo.  Pac.  Rj.  Co.,  81  Mo.,  169. 


14  Law. 

In  Tennessee,  where  the  widow  may  sue  for  her  child- 
ren and  herself,  held,  that  she  may  discontinue  the  action 
against  the  objection  of  her  children. 

Greenlee  v.  Tenn.,  &c.  R.  R.  Co.,  5  Lea,  418. 

In  Texas,  that  a  widow  may  sue,  though  she  had  lived 
separate  from  her  husband. 

Dallas,  &c.  R.  R.  Co.  v.  Spicker,  59  Tex.  435. 

In  Pennsylvania,  where  the  parent  may  recover  for 
the  loss  of  a  child,  held,  that  the  mother  of  an  illegiti- 
mate child  is  not  its  parent  within  the  statute. 

Harkins  v.  Philadelphia  &  Reading  R.  R.  Co.,  15 
Phila.  286. 

In  Massachusetts,  in  a  case  where  a  pregnant  woman 
fell  and  was  delivered  of  a  child,  which  survived  but  a 
few  minutes,  held,  that  the  child  was  not  a  person,  so  that 
an  action  would  lie  for  its  death. 

Dietrich  v.  Northampton,  138  Mass.  14. 

In  Minnesota,  where  the  action  is  by  the  representa- 
tive, for  the  benefit  of  the  widow  and  next  of  kin,  held, 
that  the  complaint  must  allege  the  existence  of  a  widow 

or  next  of  kin. 

Schwarz  v.  Judd,  28  Minn.  371. 

F.    Injuries  resulting  in  Death;    New  York. 

1.  Act  of  1847.  The  first  enactment  upon  this  subject  is 
found  in  Session  Laws  of  1847,  chapter  450,  and  reads  as 
follows : 


Injuries  resulting  in  Death.  15 

"  §  1.  Whenever  the  death  of  a  person  shall  be  caused 
by  wrongful  act,  neglect  or  default,  and  the  act,  neglect 
or  default  is  such  as  would  (if  death  had  Dot  ensued)  have 
entitled  the  party  injured  to  maintain  an  action  and 
recover  damages  in  respect  thereof,  then,  and  in  every 
such  case,  the  person  who  or  the  corporation  which  would 
have  been  liable  if  death  had  not  ensued,  Bhall  be  liable 
to  an  action  for  damages,  notwithstanding  the  death  of 
the  person  injured,  and  although  the  death  shall  have 
been  caused  under  such  circumstances  as  amount  in  law 
to  felony. 

"§2.  Every  such  action  shall  bo  brought  by  and  in 
the  name  of  the  personal  representatives  of  such  deceased 
person,  and  the  amount  recovered  in  every  such  action  shall 
be  for  the  exclusive  benefit  of  the  widowr  and  next  of  kin 
of  such  deceased  person,  and  shall  be  distributed  to  such 
widow  and  next  of  kin  in  the  proportions  provided  by 
law  in  relation  to  the  distribution  of  personal  property 
left  by  persons  dying  intestate  ;  and  in  every  such  action 
the  jury  may  give  such  damages  as  they  shall  deem  fair 
and  just,  with  reference  to  the  pecuniary  injury  resulting 
from  such  death,  to  the  wife  and  next  of  kin  of  such 
deceased,  person;  provided,  that  every  such  action  shall 
be  commenced  within  two  years  after  the  death  of  such 
deceased  person. 

"  §  3.     This  act  shall  take  effect  immediately.  " 

2.    Amendment  of  1849.    By  chapter  256,  Laws  of  18  19, 
this  statute  was  amended  in  three  important  particulars : 

First,  so  as  to  restrict  the  amount  of  damages  to  five 
thousand  dollars. 


16  Law. 

Second,  limiting  the  effect  of  the  statute  to  suits 
and  proceedings  thereafter  to  be  commenced. 

Third,  providing  for  the  indictment  and  punishment 
of  an  agent  or  employee  through  whose  wrongful  act, 
neglect  or  default  the  death  was  caused. 

3.  Amendment  of  1870.  By  chapter  78,  Laws  of  1870, 
two  other  important  amendments  were  added : 

First,  adding  the  husband  to  the  list  of  beneficiaries. 

Second,  providing  that  upon  entry  of  judgment,  inter- 
est be  added  to  the  amount  of  damages  recovered,  to  be 
computed  from  the  time  of  death. 

It  may  be  observed  here,  that  prior  to  this  amend- 
ment, it  had  been  decided  in  several  cases  that  the  hus- 
band was  not  embraced  within  the  description  of  next  of 
kin  of  the  wife,  and  was  therefore  entitled  to  no  part  of 
the  recovery. 

Lucas  v.  New  York  C.  B.  K.  Co.,  21  Barb.  245. 
Dickens  v.  N.  Y.  Central  R  R.  Co  ,  23  N.  Y.  158. 
Drake  v.  Gilmore,  52  N.  Y.  389. 

The  last  case  was  decided  in  1873,  but  the  cause  of 
action  had  accrued  prior  to  the  amendment  of  1870. 

4.  Code  Civ.  Pro.  Sections  1902-1905  of  the  Code 
contain  the  present  law  upon  the  subject. 

"  §  1902.  The  executor  or  administrator  of  a  decedent, 
who  has  left  him  or  her  surviving,  a  husband,  wife  or  next 
of  kin,  may  maintain  an  action   to  recover  damages  for  a 


Injuries  resulting  in  Death.  17 

wrongful  act,  neglect  or  default,  by  which  the  decedent's 
death  was  caused,  against  a  natural  person  who,  or  a  cor- 
poration which,  would  have  been  liable  to  an  action  in 
favor  of  the  decedent,  by  reason  thereof,  if  death  had  not 
ensued.  Such  an  action  must  be  commenced  within  two 
years  after  the  decedent's  death. 

"  §  1903.  The  damages  recovered,  in  an  action  brought 
as  prescribed  in  the  last  section,  are  exclusively  for  the 
benefit  of  the  decedent's  husband  or  wife,  and  next  of 
kin,  and  when  they  are  collected  they  must  bo  distrib- 
uted by  the  plaintiff  as  if  they  were  unbequeathed  assets 
left  in  his  hands  after  payment  of  all  debts  and  expenses 
of  administration.  But  the  plaintiff  may  deduct  there- 
from the  expenses  of  the  action,  and  his  commissions 
upon  the  residue  ;  which  must  be  allowed  by  the  surro- 
gate, upon  notice,  given  in  such  a  manner  and  to  such  per- 
sons, as  the  surrogate  deems  proper. 

"  §  1901.  The  damages  awarded  to  the  plaintiff  may 
be  such  a  sum,  not  exceeding  five  thousand  dollars,  as  the 
jury,  upon  a  writ  of  inquiry,  or  upon  a  trial,  or  where 
issues  of  fact  are  tried  without  a  jury,  the  court  or  the 
referee,  deems  to  be  a  fair  and  just  compensation  for  the 
pecuniary  injuries  resulting,  from  the  decedent's  death,  to 
the  person  or  persons  for  whose  benefit  the  action  is 
brought.  When  final  judgment  for  the  plaintiff  is  ren- 
dered, the  clerk  must  add  to  the  sum  so  awarded,  inter- 
est thereupon  from  the  decedent's  death,  and  include  it  in 
the  judgment.  The  inquisition,  verdict,  report  or  decis- 
ion may  specify  the  day  from  which  interest  is  to  be  com- 
puted ;  if  it  omits  to  do  so,  the  day  may  be  determined 
by  the  clerk  upon  affidavits. 
2 


38  Law. 

"  §  1905.  The  term  'next  of  kin, '  as  used  in  the  fore- 
going sections,  has  the  meaning  specified  in  section  1870 
of  this  aci  " 

"  §  1870.  The  term  '  next  of  kin, '  as  used  in  this 
title,  includes  all  those  entitled,  under  the  provisions  of 
of  law  relating  to  the  distribution  of  personal  property, 
to  share  in  the  unbequeathed  assets  of  a  decedent,  after 
payment  of  debts  and  expenses,  other  than  a  surviving 
husband  or  wife." 

It  will  be  observed  that  the  Code  contains  all  the  pro- 
visions of  the  old  act  as  amended  in  1870,  except  that  for 
a  criminal  proceeding  against  the  agent  or  employee,  and 
contains  nothing  new  except  certain  details  and  directions 
for  practice. 

Under  this  statutory  provision,  in  its  various  forms, 
the  following  principles  seem  to  have  been  settled  by 
adjudication. 

5.  Relation  of  decedent  to  beneficiary.  The  statute  gives  an 
action  to  the  personal  representatives,  whenever  the  decedent,  if 
living,  might  himself  have  maintained  an  action;  the  person  killed 
need  not  have  been  a  husband,  father  or  protector. 

Quin  v.  Moore,  15  N.  Y.  432. 

Keller  v.  N.  Y.  C.  R.  R.  Co.,  7  How.  Pr.  102. 

"  Although,"  the  court  says,  in  Quin  v.  Moore,  "  the 
legislature,  in  passing  the  act,  were  doubtless  influenced 
by  the  evident  justice  of  compelling  the  wrong-doer  to 
compensate  families  dependent,  in  a  greater  or  less  degree, 
for  support,  on  the  life  of  the  deceased." 


Injuries  resulting  in  Death.  19 

6.  Existence  of  widow,  or  next  of  kin.    Nor  is  it  necessary  to 
prove  tlie  existence  of  a  widow  or  next  of  kin. 

Oldfield  r.  N.  Y.  &  Harlem  It.  R.  Co.,  14  N.Y.  310. 

Quin  v.  Moore,  15  N.  Y.  432. 

Tilley  v.  Hudson  River  R.  R.  Co.,  24  N.  Y.  471. 

McMahon  v.  New  York,  33  N.  Y.  012. 

Dickens  v.  N.  Y.  C.  R.  R.  Co.,  28  Barb.  41. 


7.  Fact  of  damages.    Nor  is  it  necessary  to  prove  any  pecu- 
niary, or  special  damage. 

Oldfield  v.  N.  Y.  &  Harlem  R.  R.  Co.,  14  N.  Y.  310. 
Keller  v.  N.  Y.  C.  R.  R.  Co.,  2  Abb.  Dec.  480. 


8.  Abatement.  The  action  abates  on  the  death  of  the  wrong- 
doer, and  cannot  be  revived  against  his  personal  representaiivs. 
(Overruling  Yertore  v.  Wiswall,  16  How.  Pr.  8.) 

Hegerich  v.  Keddie,  99  N.  Y.  258. 


9.  Extra-territorial  effect.     The  statute  has  no  extra-terri- 
torial effect,  so  if  the  injury  occurred  in  another  State,  th  n 
be  no  action  liere,  unless  it  appear  that  a  statute  similar  to  ours 
exists  there. 

Debevoise  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  98  N.  Y. 

377. 
Mahler  v.  Norwich  &  N.  Y.  Trans.  Co.,  35  N.  Y.  352. 
Beach  v.  Bay  State  Co.,  10  Abb.  Br.  71 ;  30  Barb 
Whitford  r.  Panama  R.  R.  Co.,  23  N.  Y.  405. 
McDonald  v.  Mallory,  7  Abb.  N.  C.  84  ;  77  N.  Y.  54G. 
Crowley  v.  Tanama  R.  R.  Co.,  30  Barb.  99. 
Vandeventer  v.  N.  Y.  A  N.  H.  R.  R.  Co.,  27  Barb.  2 1 1 

But  may  where  it  appears  that  the  laws  of  that  S; 
are  similar  to  those  of  this  State,  giving  to  the    | 


20  Law. 

representatives  a  right  of  action  in  such  cases  ;   it  is  not 
essential  that  the  statute  should  be  precisely  the  same. 

Leonard  v.  Columbia  Steam  Nav.  Co.,  84  N.  Y.  4B. 


10.  Common-law  right  of  husband  or  parent.  "Whether  or 
not  a  father  who  has  been  deprived  of  the  services  of  his 
child,  or  a  husband  who  has  lost  the  society  and  assist- 
ance of  his  wife,  by  acts  of  culpable  negligence  on  the  part 
of  others,  by  means  of  which  death  has  ensued,  may  not 
respectively  maintain  actions  against  the  wrong-doer,  to 
recover  damages  for  such  injury,  is  a  question  as  to  which 
the  decisions  are  at  variance ;  one  line  of  authorities  hold- 
ing that  there  is  no  cause  of  action  but  the  statutory  one 
in  case  of  death,  the  other,  that  there  is  a  common-law 
right  of  recovery. 

(a.)  In  Ford  v.  Monroe,  20  Wend.  210,  a  child  having 
been  run  over  and  killed,  the  father  was  held  "  entitled 
to  recover  such  sum  by  way  of  damages  as  the  services  of 
the  child  would  have  been  worth  to  him,  until  he  became 
twenty-one  years  of  age."     This  case  was  decided  in  1838. 

(b.)  In  Lynch  v.  Davis,  12  How.  Pr.  323,  Eensselaer 
special  term,  1855,  it  was  held  that  an  action  could  not  be 
sustained  under  the  act  of  18 17  by  a  plaintiff,  as  adminis- 
trator of  the  deceased  wife,  for  injures  resulting  from  mal- 
practice ;  that  the  right  of  action  vested  in  him  as  husband. 

The  court  say  :  "The  common-law  gave  the  husband, 
and  the  father,  a  right  to  recover  of  the  wrong-doer  the 
pecuniary  injury  he  had  sustained  by  reason  of  the  killing 
of  his  wife  or  child." 


Injuries  resulting  in  Death.  21 

(c.)  In  Green  v.  Hudson  It.  R.  R.  Co.,  28  Barb.  9, 
Oneida  special  term,  1858,  affirmed  at  general  term  on 
same  opinion,  the  opposite  ground  is  taken,  the  court 
holding  that  no  such  action  will  lie,  and  supposing  "  the 
question  has  been  too  long  settled  in  England  and  in 
this  country  to  be  disturbed,  and  that  it  would  s 
somewhat  more  of  judicial  knight-errantry  than  of  legal 
prudence  to  attempt  to  unsettle  what  has  been  deemed 
at  rest  for  more  than  two  hundred  and  fifty  years."  Of 
Ford  v.  Monroe,  the  court  say:  "The  case  is  certainly 
anomalous,  sustained  by  no  precedent,  and  in  plain  con- 
flict with  all  previous  authority." 

(d.)  In  Whitford  v.  Panama  R.  R.  Co,  23  N.Y.  465  (1861), 
this  question  was  suggested,  but  the  court  say  :  " 
present  action  does  not  in  any  way  involve  that  con- 
troversy, and  as  the  case  just  referred  to  (Green  v.  H  R. 
R.  R.  Co.),  is  understood  to  be  pending  in  this  court  on 
appeal,  it  is  intended  carefully  to  abstain  from  the  esj 
sion  of  any  opinion  upon  it." 

(e.)  In  I860  the  Green  case  was  affirmed  by  the  court  of 
appeals  (2  Keyes,  294;  2  Abb.  Dec.  277),  the  court  paying 
its  respects  to  both  Ford  v.  Monroe  and  Lynch  v.  Davis. 
The  particular  point  decided  in  the  Green  case  was  th  it 
a  husband  could  not  maintain  an  action  for  the  instantan- 
eous killing  of  his  wife  through  the  negligence  of  another. 
The  same  had  been  held  in  1855,  in  Lucas  y.  N.  Y.  C.  R 
R.  Co,  21  Barb.  243. 

(f.)  In  McGovern  r.  N.Y.  C.  &  H.  R  R  11.  Co,  67  N.Y. 
417,  decided  in  1876,  the  court  was  expressly  non-com- 
mittal upon  this  point,    which    was   not   necessary  to  its 


22  Law. 

decision,  although  the  language  of  the  opinion  leads  to  the 
inference  that  its  attention  was  not  called  to  the  Green 
case.  The  action  was  brought  by  a  father  as  administrator 
of  his  minor  son.  The  question  arose  upon  an  exception 
to  the  refusal  of  the  trial  judge  to  charge  "  that  inasmuch 
as  the  father  is  entitled  to  the  services  of  his  son  until  he 
becomes  of  age,  the  earnings,  which  he  might  have  made 
during  his  minority,  are  not  to  be  considered."  The 
court  said :  "  Assuming,  as  seems  to  have  been  held  in 
Ford  v.  Monroe,  that  a  father  can  recover  damages  for  the 
loss  of  service  of  his  minor  son,  against  a  person  who 
negligently  caused  his  death,  to  be  computed  and  ascer- 
tained from  the  time  of  his  death,  until  the  time  when 
the  son,  if  living,  would  have  attained  his  majority,  the 
question  arises  whether,  in  an  action  brought  by  the 
father,  as  administrator,  under  the  statute,  the  entire 
damages  may  be  recovered,  including  the  loss  of 
service,  when,  as  in  this  case,  the  father  elects  to  proceed 
for  and  claim  his  whole  damages  in  the  statutory  action, 
and  the  recovery  is  for  his  exclusive  benefit. 

"  We  are  inclined  to  the  opinion  that  in  such  a  case 
damages  for  the  loss  of  service  znay  be  included  in  the 
recovery  as  a  part  of  the  pecuniary  loss  to  the  next  of  kin 
of  the  deceased,  resulting  from  his  death,  and  that  a 
recovery  will  bar  another  action  for  the  same  damages  by 
the  father  as  such.     .     .     . 

"  We  confine  our  opinion  to  the  precise  case  presented, 
assuming,  on  the  authority  of  Ford  v.  Monroe,  that  the 
father  has  a  right  of  action,  independent  of  the  statutes, 
for  loss  of  service." 

(g.)  In  Stuebing  v.  Marshall,  2  Civ.  Pro.  Kep.  77,  K 
Y.  Common  Pleas,  General  Term,  the  court  carefully  say  : 


Injuries  resulting  in  Death.  23 

"  It  is  said  that  the  father  had  a  cause  of  action  at  com- 
mon law,  in  addition  to  the  cause  of  action  created  by  the 
statute."  But  the  point  at  issue  was  as  to  the  effect  of 
the  father's  release  of  all  claims  upon  his  cause  of  action 
as  administrator,  and  the  McGovern  case  is  cited  upon 
the  precise  point  decided  by  it. 

11.  Bar  by  act  of  parent.  If  the  father  be  the  sole  beneficiary 
under  the  statute,  a  release  by  him  will  bar  an  action  under  the 
statut:. 

Stuebing  v.  Marshall,  2  Civ.  Pro.  R.  77. 


12.  Bar  by  act  of  decedent.  If  the  wrong-doer  settled  icith 
the  deceased  in  his  lifetime,  and  paid  him  the  amount  (f  his 
claim  on  account  of  tJie  injury,  (')  or  if  the  decedent  brought 
suit  and  recovered  damages  for  the  injury  in  his  lifetime^  (a) 
the  personal  representatives  cannot  maintain  an  action 

(')  Dibble  v.  N.  Y.  &  Erie  By.  Co.,  25  Barb.  1S3. 

(Twice  argued  in  Court  of  Appeals,  but  nover 

decided.    21  How.  Pr.  593    2:3  Id.  599.) 
(!)  Littlewood  v.  New  York,  89  N.  Y.  24. 

(Overruling  Schlicbting  v.  Wintgen,  25  Hun, 

626.) 

The  court  in  this  case,  speaking  of  the  Dibble  case, 
say  :  "  The  decision  of  the  Supreme  Court  cannot,  in  the 
light  of  subsequent  cases,  be  sustained  on  the  ground  that 
the  representative  suing  under  the  statute  merely  suc- 
ceeded to  the  right  of  action  of  the  deceased,  and  was,  for 
that  reason,  barred  by  his  release.  But  on  the  ground  that 
the  statute  was  not  intended  to  subject  the  defendant  to 
an  action,  where  he  had  made  compensation  to  the 
deceased  in  his  lifetime,  and  would  not  have  been  liable 


24  Law. 

if  tho  deceased  had  not  died,  I  think  the  conclusion  was 
correct." 


13.  Joinder  of  actions.  A  person  who  is  the  administrator 
of  the  estates  of  two  persons  killed  by  the  same  accident,  cannot 
join  the  two  grievances  in  one  action. 

Danaher  v.  Brooklyn,  4  Civ.  Pro.  K.  286. 


CHAPTER  III. 

GROUNDS  OF  LIABILITY.     WHOM  TO  SUE. 

A.  Grounds  of  Liability. 

First.  Nuisance. 

1.  Rule. 

2.  Creator  out  of  possession. 

3.  Maintainor  of  nuisance. 

4.  Knowledge. 

5.  Ignorance  as  an  excuse. 

6.  Non-user  as  an  excuse. 

7.  License,  generally. 

8.  Effect  of  license. 

9.  Degree  of  care  under  license. 
Second.  X<><jU<jence. 

10.  Negligent  act. 

11.  Neglect  of  duty. 

B.  "Whom  to  sue. 

1.  Principal. 

2.  Owner  for  fault  of  contractor. 

3.  Officers. 

4.  Agents  and  servants. 

5.  Contractors. 

6.  Abutting  owners. 

7.  Concurrent  liability. 

A.  Grounds  of  Liability. 

The  liability  for  defects  or  obstructions  in  highways 
may  be  said  to  be  grounded  in  either  (1)  nuisance,  cm    - 
negligence.     It   should,  perhaps,  be  added,  that  both  of 

these  may  concur  in  a  given  c 

[25J 


26  Law. 

Fiest.    Nuisance. 

1.  Rule.  He  10I10,  without  license  or  lawful  authority,  cre- 
ates or  maintains  a  dangerous  obstruction  in  a  public  street, 
creates  or  maintains  a  nuisance,  and  is  liable  to  persons  injured 
thereby,  irrespective  of  negligence  or  care. 

Hart  v.  New  York,  9  Wend.  571. 

Dygert  v.  Schenck,  23  Id.  446. 

Brown  v.  Cayuga  &  S.  R.  R.  Co.,  12  N.  Y.  486. 

Congreve  v.  Smith,  18  N.  Y.  79. 

Congreve  v.  Morgan,  18  N.  Y.  84. 

Creed  v.  Hartmann,  29  N.  Y.  591. 

Irvine  v.  Wood,  51  N.  Y.  224. 

Baxter  v.  Warner,  6  Hun,  585. 

Clifford  v.  Dam,  81  N.  Y.  52. 

Woram  v.  Noble,  41  Hun,  398. 

2.  Creator.  The  above  rule  is,  however,  subject  to 
the  following  : 

To  charge  one  who  has  created  a  nuisance  with  liability  for 
its  continuance,  after  he  has  parted  with  the  property  upon 
which  it  is  situated  or  caused,  he  must  be  shoivn  to  derive  some 
benefit  from  the  continuance,  as  by  demising  the  premises  and 
receiving  rent ;  or  to  have  sold  with  warranty  of  the  con- 
tinued use  of  the  property,  as  enjoyed  while  the  nuisance 
existed,  with  covenants  for  the  continuance  of  the  nuisance. 

Hanse  v .  Cowing,  1  Lans.  288. 
People  v.  Livingston,  27  Hun,  105. 

3.  Maintainer.    A  maintainer  of  a  nuisance  is  a  person 

deriving  benefit  from  it,  with  knowledge  of  its  existence.     He 

may  be  the  owner,  (*)  either  occupying  or  receiving  rent,  or  a 

tenant.  (2) 

(')  Irvine  v.  Wood,  51  N.  Y.  224. 

Anderson  v.  Dickie,  26  How.  Pr.  105. 


Grounds  of  Liability.  27 

Walsh  v.  Mead,  8  Hun,  387. 
Edwards  r.  N.  Y.  A  H.  R.  R.  Co.,  98  N.  Y.  245. 
Swords  v.  Edgar,  59  N.  Y.  28. 
Davenport  v.  Ruckman,  37  N.  Y.  5C8. 
McGuiro  v.  Spepoe,  91  N.  Y.  303. 
Congreve  v.  Smith,  18  N.  Y.  79. 
Congrevo  v.  Morgan,  Id.  84. 
(a)  Wasmer  v.  D.,  L.  &  W.  R  R.  Co.,  80  N.  Y.  212. 
Swords  r.  Edgar,  supra. 
Irvine  v.  Wood,  51  N.Y.  224. 
Edwards  v.  N.  Y.  &  H.  R.  R.  Co.,  supra. 
Brown  v.  Cayuga  &  Susq.  R.  R.  Co.,  12  N.Y.  482. 

In  Swords  v.  Edgar  the  rule  was  laid  down  that  where 
premises  are  affected  by  the  nuisance  at  the  time  of  the 
letting,  the  lessor  is  liable. 

And  in  Walsh  v.  Mead,  that  this  is  so,  even  though  the 
negligence  of  the  tenant  contributed  to  the  injury. 

This  is  subject  to  principles  stated  below,  particularly 
the  consideration  of  knowledge  by  the  owner. 

4.  Knowledge.  He  who  knowingly  maintains  a  nuisance 
is  as  responsible  there/or  as  he  who  creates  it. 

Davenport  r.  Ruckman,  37  N.Y.  568. 

Wasmer  v.  D.,  L.  k  W.  R.  R.  Co.,  80  N.  Y.  212. 

Brown  v.  Cayuga  &  S.  R.  R.  Co.,  12  N.  Y.  486. 

(a)  Actual  knowledge  need  not  he  proven ;  it  may  be 
implied  from  circumstances. 

Irvine  v.  Wood,  supra. 

"  It  was  near  their  store,  in   plain  view,  and  it  was 

carelessness  for  thorn  to  occupy  the  store  for  months,  and 

to  use  the  hole,  which,  if  not  properly  covered,  was  dan- 

i  gerous  to  travelers,   and  not  examine  into  and  know  its 


28  Law. 

condition.  It  was  their  duty  to  know  its  condition,  and 
they  must  be  held  to  the  same  responsibility  as  if  they 
had  actually  known  it." 

5.  Ignorance.  Actual  ignorance  of  the  nuisance  may,  under 
certain  circumstances,  relieve  from  liability. 

(a)  Thus,  where  the  owner  did  not  create  the  nuis- 
ance, and  purchased  the  premises  subject  to  a  lease,  and 
the  tenant  was  required  to  make  all  repairs,  and  the  owner 
was  ignorant  of  the  defect,  he  was  held  not  liable. 

Woram  v.  Noble,  41  Hun,  398. 

The  court  say  :  "  To  impose  liability  upon  the  defend- 
ant for  the  disaster  that  befell  the  plaintiff,  would  be  to 
hold  him  responsible  for  the  nuisance,  when  he  had  no 
agency  in  its  creation,  was  without  knowledge  of  its 
existence,  derived  no  benefit  from  its  continuance,  and  was 
destitute  of  authority  for  its  abatement.  Being  innocent 
of  everything  but  the  ownership  of  the  reversion  at  the 
time  of  the  accident,  no  rule  of  justice  requires  a  visita- 
tion of  the  consequences  of  the  accident  on  the  defendant, 
and  nothing  but  a  severe  rule  of  law  will  justify  a  decision 
producing  such  a  result.  Our  examination  discloses  no 
such  rule." 

It  will  be  observed  that  the  expression  "  derived  no 
benefit  from  its  continuance,"  as  applied  in  this  case, 
seems  at  variance  with  the  usually  recognized  rule  that 
the  receiving  of  rent  is  a  benefit  so  as  to  charge  the  land- 
lord with  the  nuisance,  provided  he  had  knowledge  of  it. 


Grounds  of  Liability.  29 

Perhaps,  however,  it  should  be  considered  in  connec- 
tion with  the  principle  laid  down  in  Clancy  v.  By 
i:  fro,  where  the  court  say  :  "  If  a  landlord  let  premises, 
not  in  themselves  a  nuisance,  and  it  is  entirely  at  the 
option  of  the  tenant  to  so  use  them  or  not  that  they  shall 
not  become  so,  and  the  landlord  will  receive  the  same  h 
if  they  be  not  so  used,  the  landlord  is  not  responsible  if,  by 
the  careless  use  by  the  tenant,  they  become  a  nuisance." 

(b)  So  where  the  nuisance  did  not  exist  at  the  time  of 
the  letting,  but  arose  from  the  manner  in  which  the  lessee 
used  the  premises,  (')  or  was  occasioned  by  the  wrongful 
act  of  a  stranger,  (2)  and  the  owner  was  unaware  of  the 
danger^  he  is  not  liable. 

(')  Evan  v.  Wilson,  87  N.  Y.  471. 
Clancy  v.  Byrne,  5G  N.  Y.  129. 
(2)  Wolf  v.  Kilpatrick,  101  N.  Y.  146. 

The  first  was  the  case  of  a  building  containing  a  revolv- 
ing shaft,  and  the  tenant  placed  a  partition  so  near  the 
shaft  that  it  became  dangerous  to  pass  between,  hence 
the  injury. 

In  the  case  last  cited,  the  injury  was  caused  by  the 
breaking  by  a  stranger  of  a  stone  supporting  the  iron 
cover  of  a  properly  constiucted  coal-hole. 


6.  User.  Where  a  person  acquires  till'-  t<>  land  upon  which 
is  a  nuisance,  the  mere  omission  to  abate  or  n  mow  it  does  not 
render  him  liable  ;  actual  use  must  be  shown,  or  <>  request  to 
abate. 

Wenzlick  r.  McCottor,  87  N.  Y.  122. 


30  Law. 

In  that  case,  two  houses  had  been  built  with  a  common 
leader  from  the  two  roofs,  which  was  upon  the  defendant's 
house.  The  defendant  purchased  the  house  in  that  con- 
dition, and  changed  the  conductors  so  that  the  water  from 
that  house  no  longer  ran  in  the  common  leader,  though 
the  leader  still  remained  on  his  house.  The  obstruction 
was  ice,  formed  from  water  from  the  leader,  coming,  of 
course,  from  the  roof  of  the  adjacent  house.  The  owner 
was  held  not  liable. 

7.  License,  generally.  The  general  rule  as  to  nuisance  (§  1, 
above)  is  subject  to  the  power  usually  given  by  charter  to  muni- 
cipal corporations  to  make,  or  expressly  or  impliedly  to  license, 
temporary  obstructions  or  excavations  for  the  making  and 
repairing  of  streets,  the 'protection  or  convenience  of  the  public , 
for  laying  pipes,  for  building,  for  the  requirements  of  trade,  for 
the  convenient  enjoyment  of  abutting  buildings,  or  otherwise. 

Behberg  v.  New  York,  91  N.  Y.  137, 143. 

Nolan  v.  King,  97  N.  Y.  565. 

See  also  cases  cited  in  chap.  I.  \  3. 

And  such  license  may  be  implied  from  the  knowledge 
of  and  absence  of  objection  by  the  municipal  authorities. 

Bobbins  v.  Chicago,  4  Wall.  657. 


8.  Effects  of  license.  A  license  or  permit  from  the  proper 
authority  changes  the  character  of  the  liability  from  that  for  a 
nuisance  to  one  for  negligence  or  want  of  proper  care. 

Irvine  v.  Wood,  51  N.  Y.  224. 

Wolf  v.  Kilpatrick,  101  N.  Y.  146. 

Clifford  v.  Dam,  81  N.  Y.  52. 

Mairs  v.  Manhattan  Asn.,  89  N.  Y.  498. 


Grounds  of  Liability.  31 

N..lan  r.  Kinp,  97  N.  V 

Brusso  v.  Buffalo,  90  N   V.  I 

McCamus  r.  Citizens'  Gas-light  Co.,  40  Barb.  380. 

Blake  v.  Ferris,  5  N.  Y.  48. 

In  Irvine  v.  "Wood,  thero  was  no  license,  but  in  the 
course  of  the  opinion  the  court  say:  "  Even  if  this  hole 
was  excavated  in  the  street  by  permission  of  competent 
authority,  the  persons  who  originally  excavated  it  were 
bound  to  do  it  in  a  careful  manner,  and  to  see  that  it  was 
properly  and  carefully  covered,  so  as  not  to  be  perilous 
to  travelers  upon  the  street.  They  could  get  from  the 
authorities  no  license  for  carelessness.  For  in  such  case  the 
city  itself  would  be  liable  for  the  carelessness  of  its  offi- 
cers (Barton  v.  Syracuse,  36  N.  Y.  54).  And  this  liability 
attached  not  only  to  those  who  made  the  excavation,  but 
to  those  who  continued  and  used  it  in  its  improper  and 
unsafe  condition." 

In  Clifford  v.  Dam,  it  was  proposed  to  prove  a  license 
which  had  not  been  pleaded.     The  court  excluded  the 
proposed  evidence,  and  said  :  "  If  a  permit  was  material, 
the  effect  of  it  would  only  be  to  mitigate  the  act  from  ail 
absolute  nuisance  to  an  act  requiring  care  in  the  const  ru  •- 
tion  and  maintenance ;  and  to  justify  such  a  structure,  it 
would  be  necessary  not  only  to  plead  it,  but  also  to  allege 
and  prove  a  compliance  with  its  terms,  and  that  the  struc- 
ture was  properly  made  and  maintained  to  secure  the  > 
safety  to  the  public  that  th*  sidt  walk  wo\  HI 
Old  it.     When  permission  is  given  by  a  municipal  author- 
ity to  interfere  with  a  street  solely  for  private   us.'  and 
convenience,  and  in  no  way  connected  with  the  public  use, 
the  person  obtaining  such  permission  must  see  to  it  that, 
the  street  is  restored  to  its  original  safety  and  usefulness." 


32  Law- 

9.  Modification  of  above.  The  Court  of  Appeals  have 
found  it  necessary  in  a  late  case  to  explain  and  somewhat 
modify  the  force  of  the  expression  above  italicized,  quoted 
from  the  opinion  in  Clifford  v.  Dam. 

In  Nolan  v.  King,  97  N.  Y.  565,  the   obstruction  con- 
sisted of  a  temporary  bridge  made  over  an  excavation,  for 
which  a  permit  had  been  given.    The  trial  justice  charged 
to  the  full  extent  of  the  language  of  Clifford  v.  Dam,  that 
"  the  defendant  was  under  a  liability  to  have  the  bridge 
constructed  in  such  a  manner  that  the  plaintiff  would  not 
be  subjected  to  any  more  personal  risk  than  if  the  side- 
walk had  been  there  instead  of  the  bridge."     The  Court 
of  Appeals,  commenting  on   this,  say  of  the  decision  in 
Clifford  v.  Dam :  "  There  a  vault  was  built  with  an  open- 
ing in  the  sidewalk  to  receive  coal ;  but  the  cover  to  the 
opening,  intended  to  remain  there   permanently,  and  to 
constitute  a  part  of  the  sidewalk,  was  so  imperfectly  con- 
structed that  it  gave  way,  and  injury  followed.     We  said 
that  the  builder  was  bound  to  make  the  sidewalk  as  safe 
as  it  was  before  excavated.     But  we  did  not  say  that  he 
was  bound  to  do  that  during  the  progress  of  construction. 
In  the  present  case,  the  builder  was  required  to  restore 
the  sidewalk  which  he  had  excavated  to  its  original  safe 
condition ;  but  that  is  not  saying  he  must  keep  it  so  dur- 
ing the  progress  of  construction.     That  process  implies 
and  compels  a  temporary  removal  of  the  sidewalk,  and 
either  it  must  be  left  impassable,  and  guarded  and  pro- 
tected as  an  excavation,  or  bridged   above  the  sidewalk 
level  so  that  the  work  of  building  or  restoration  can  go  on 
beneath  it,  and  without  obstruction  to  the  public  travel." 
And  again :  "In  all  such  cases  it  is   inevitable  that  the 
passage  of  the  public,  temporarily,  is  made  less  conveni- 


Grounds  of  Liability.  33 

ent  and  not  so  perfectly  safe,  as  before  the  removal  of  the 
sidewalk;  but  if  this  is  done  with  prudence  and  care,  with 
good  judgment,  and  properly  and  attentively,  so  us  not 
to  be  perilous  to  passengers  in  the  street,  the  builder  is 
not  responsible  for  an  accident.  The  rule  applied  upon 
the  trial  of  this  case  would  tend  to  make  impossible  any 
temporary  occupation  of  the  street  by  builders  during  the 
process  of  construction." 

Second.    Negligence. 

The  cases  in  which  the  liability  is  founded  on  negli- 
gence may  be  arranged  in  two  classes :  first,  where  the 
negligence  is  in  the  performance  of  an  act ;  aeoondt  where 
it  consists  of  the  neglect  of  a  duty. 


1).  Negligent  act.    He  10I10  negligently   creates  ogr   main- 
tains an  obstruction   in   a  public  street,    is  liable  to  pert 
injured  thereby,  irrespective  of  authority  or  license. 

Sexton  v.  Zett,  56  Barb.  119.  44  N.  Y.  430. 
Bliss  v.  Schaub,  48  Id  339. 
Steivermann  v.  White,  48  Super.  523. 
Dixon  v.  Brooklyn  City  &  N.  K.  R.  Co.,   100  N.  V 
170.   (See  also  cases  cited  under  i.i.  7,  8,  supra.) 
Mairs  v.  Manhattan  Beal  Estate  Ass'n.,  89  N.  Y.  498. 
Bobbins  v.  Chicago,  4  Wall.  657. 
Mulcairns  r.  Jaynesville,  34  Alb.  L.  J.  156. 
Indianapolis  r.  Eninielman,    (Ind.)   35  Alb.  L.  J. 
137. 

The  two  cases  last  cited  are    examples   of   tlmsc  in 
which  a  municipal  corporation  itself  caused  the  obstruc- 
tion. 
3 


34  Law. 

11.  Neglect  of  duty.     The  person  who,  or  corporation  tvhich, 

having  imposed  upon  it  the  duty  of  keeping  the  streets  safe  for 

travel,  is  negligent  in  the  performance  of  that  duty,  is  liable  to 

the  person  injured  by  a  neglect,  or  omission,  to  properly  perform 

such  duty. 

Bennett  v.  Whitney,  94  Iff.  Y.  302. 
Hover  v.  Barkhoof,  44  N.  Y.  113. 
Eobinson  v.  Chamberlain,  34  N.  Y.  389. 
Adsit  v.  Brady,  4  HiU,  630. 

(Under  this  head  come  the  liability  of  municipal  cor- 
porations and  of  quasi-corporations  and  their  officers.) 

B.    Whom  to  sue. 

1.  Principal.  An  individual,  acting  personally,  or  through 
agents  or  servants,  or  a  corporation,  is  liable  to  a  person  suffer- 
ing injury  by  a  defect  or  obstruction  created,  maintained,  or 
negligently  suffered,  as  specified  above. 

It  is  quita  unnecessary  to  dwell  upon  or  illustrate  the 
liability  of  the  principal,  acting  personally. 

The  liability  of  a  principal  for  the  act  of  his  agent  is 
also  so  elementary  that  it  needs  no  attention. 

2.  Principal  for  fault  of  contractor.  The  application  of 
the  doctrine  of  respondeat  superior  to  the  case  of  a  con- 
tractor and  his  principal  may  be  considered  more  fully  in 
another  connection. 

The  liability  of  the  principal  is  discussed  in 

Blake  v.  Ferris,  5  N.Y.  48. 
Pack  v.  New  York,  8  N.Y.  222. 
Kdly  v.  New  York,  11  N.Y.  432. 


Grounds  of  Liability.  33 

and  the  absence  of  liability  in 

Baxter  r.  Warner,  G  Hun,  585. 

3.  Officers.     One  who  assume*  the  duties  and  is  vested  with 
He  powers  of  a  public  officer  is  liable  to  an  individual  who  sus- 
tains x/><rial  damage  by  a  neglect  or  omission  to  properly  j»  r- 
form  such  duties. 

Bennett  r.  Whitney,  94  N.  Y.  302. 
Hover  r.  Barkhoof,  44  N.  Y.  113. 
Robinson  v.  Chamberlain,  34  N.  Y.  389. 
Adsit  v.  Brady,  4  Hill,  630. 

In  Adsit  v.  Brady  the  court  say  :  "  When  an  individual 
sustains  an  injury  by  the  misfeasance  or  non-feasance  of 
a  public  officer,  who  acts,  or  omits  to  act,  contrary  to  his 
duty,  the  law  gives  redress  to  the  injured  party  by  an 
action  adapted  to  the  nature  of  the  case." 

This  is  denied  in  Weet  v.  Trustees  of  Brockport, 
10  X.  Y.  161,  note,  but  the  point  was  unnecessary  to  the 
decision  of  the  case,  and  the  opinion  is  disapproved  in 
Robinson  v.  Chamberlain. 

In  Hover  v.  Barkhoof  the  court  say:  "The  principle 
should  be  regarded  as  settled  in  this  State,  that  public 
officers  whose  duties  are  not  judicial,  are  answerable 
in  damages  to  any  one  specially  injured  by  their  care- 
less and  negligent  performance  of  or  omission  to  perform, 
the  duties  of  their  office." 

In  Bennett  v.  Whitney  the  court  add  :  "It  was  not  a 
case  of  non-feasance,  or  omission  to  act  at  all.  where  in 
some  cases  it  may  be  necessary  to  show  adequate  means 
in  the   hands  of  the   officer;  hut  a  case  of  misfeasance. 


36  Law. 

where  the  officer  had  acted,  but  conducted  himself  negli- 
gently, to  the  special  injury  of  an  individual." 

4.  Agents  and  servants.  It  seems,  also,  that  an  agent  (')  or 
servant  (2)  is  responsible  for  injuries  resulting  from  negligence  in 
his  employment. 

(')  Phelps  v.  Wait,  30  N.  Y.  78. 

0  Wright  v.  Wilcox,  19  Wend.  343. 

Suydam  v.  Moore,  8  Barb.  358. 

Montfort  v.  Hughes,  3  E.  D.  Smith,  591. 

But  the  mere  architect  or  builder  of  a  public  work  is 
answerable  only  to  his  employer  for  any  want  of  care  or 
skill  in  the  execution  thereof,  and  he  is  not  liable  to 
third  persons  for  accidents  or  injuries  which  may  occur 
after  the  completion  of  such  work. 

Albany  v.  Cunliff,  2  N.Y.  165. 

5.  Contractor.     Under  this  head  two  classes  arise  : 

(a)  A  person  entering  into  a  contract  icith  a  city  to  keep 
its  streets  in  repair,  in  effect  contracts  to  perform  that  duty  to 
the,  public  in  the  place  and  stead  of  the  municipality,  and  may 
be  sued  directly  by  the  person  injured. 

McMahon  v.  Second  Ave.  B.  B.  Co.,  11  Hun,  347  ; 
75  N.  Y.  231. 

(b)  A  contractor  for  the  performance  of  certain  work  is 
liable  for  the  negligence  of  himself  and  his  subcontractors  and 
employees  in  such  performance. 

Creed  v.  Hartmann,  29  N.  Y.  591. 
Burns  v.  Dillon,  16  W.  Dig.  368. 
Finegan  v.  Moore,  46  N.  J.  L.  602. 


Grounds  of  Liability.  37 

(c)  "While  a  contractor  is  bound  t<>  put  the  street  in 
safe  condition,  he  is  not  bound  to  place  a  cross-walk 
where  none  had  been  before. 

Thieme  v.  Gillen,  41  Hun,  443. 

(d)  A  contractor  may  defend  by  showing  that  he  acted 
by  direction  of  city  office 

Cunningham  v.  Wright,  28  Hun,  178. 

6.  Lot-owner.     The  abutting  owner  <iihi«>i,  without  special 

statute,  bv  madeli<iU<,  either  din  .fly  ,,,-  indirectly,  for  in) 
occasioned  by  a  defect  in  a  sidewalk,  n<>t  caused  l>y  Itim. 

Fulton  r.  Tucker,  5  T.  ft  0.  621. 
Moore  r.  Gadsden,  87  N.  Y.  84. 

So  in  Iowa. 

Keokuk  r.  Independent  District,  53  Iowa,  352. 

Even  where  the  charter  provides  that  the  city  may 
compel  lot-owners  to  repair,  it  cannot  discharge  its  own 
liability  by  simply  giving  them  notice. 

Bussell  r.  Canastota,  98  N.  Y.  496. 

7.  Concurrent  liability.     Two  or  more  <f  the  t 

named  may  be  liable  for  the  same  defect  or  obstruction.    Thus  : 

(a)  The  owner  and  the  tenant  oi  premises  on  which 
a  nuisance  is  maintained. 

Davenport  r.  Rucknmn.  87  N.V.  568. 
Irvine  r.  Wood.  .M  NY.  221 
Jennings  v.  Van  Schaiok,  13  Daly,  510. 


38  Law. 

(b)  The  person  causing  the  obstruction,  and  the  city 
whose  duty  it  is  to  care  for  the  streets. 

Wilson  v.  Watertown,  5  T.  &  C.  579. 

Dixon  v.  Brooklyn  City,  &c.  R.  R.  Co.,   100  N.  Y. 

170. 
Trowbridge  v.  Forepaugh,  14  Minn.  133. 

(c)  To  which  list  may  be  added  the  contractor  with 
the  municipal  corporation  to  perform  its  duty  in  caring 
for  the  streets. 

McMahon  v.  Second  Ave.  R.  R.  Co.,  75  N.  Y.  231. 

(d)  The  municipal  corporation  and  the  abutting 
owner,  whom  it  may,  by  its  charter,  compel  to  repair  and 
improve  the  sidewalk. 

Russell  v.  Canastota,  98  N.Y.  496. 

(e)  In  all  the  cases  above  mentioned,  where  agents  or 
servants  are  held  to  be  liable  to  the  person  injured,  it 
was  also  held  that  the  principal  or  master  would  also  be 

liable. 

Wright  v.  Wilcox,  19  Wend.  343. 
Suydam  o.  Moore,  8  Barb.  358. 
Phelps  v.  Wait,  30  N.  Y.  78. 

(f)  For  a  personal  injury  occasioned  by  the  negli- 
gence of  several  persons,  there  is  both  a  separate  and  a 
joint  liability. 

Cases  cited  nnder  fa)  and  (e)  above  ;  also 
Creed  v.  Hartmann,  29  N.  Y.  591. 

In  Minnesota  it  appears  that  the  city  and  the  person 
creating  the  obstruction  cannot  be  sued  jointly. 

Trowbridge  v.  Forepaugh,  supra. 


CHAPTER  IV. 

HIGHWAYS,  HOW  ESTABLISHED. 

A.  By  Statutory  Proceeding. 

B.  By  Prescription. 

1.  Introductory. 

2.  In  New  York. 

3   In  other  States. 

C.  By  Dedication. 

1.  Introductory. 

2.  Dedication  denned. 

3.  Intent  must  be  proven. 

4.  Manner  of  proof. 

5.  Intent  shown  by  acts. 

6.  Conveyance  by  map,  binding  on  parties. 

7.  Contra,  as  to  the  public. 

8.  Bight  of  way. 

9.  Map,  by  whom  made. 

10.  Actual  map. 

11.  Inference  from  user. 

12.  Revocation. 

v  13.  Acceptance,  generally. 

14.  How  proven. 

15.  Acts  to  prove. 

16.  User. 

17.  Adjudications  as  to  user. 

18.  Statutory  acceptance  by  limitation. 

19.  Leading  cases. 

20.  Miscellaneous  cases. 

In  order  to  establish  a  liability  for  injuries  received, 

upon  the  ground  that  they  were  received  upon  a  public 
1  &  [39] 


40  Law. 

highway,  it  is  many  times  necessary  to  prove  the  exist- 
ence of  the  highway  as  a  public  thoroughfare. 

There  ae,  speaking  generally,  three  ways  by  which 
streets  may  be  established  : 

First.  By  statutory  proceeding. 

Second.  By  prescription. 

Third.  By  dedication  and  acceptance. 

The  liability  of  the  person  or  corporation  at  fault  is, 
however,  wholly  independent  of  the  way  by  which  the 
street  became  such. 

Phelps  v.  Monkato,  23  Minn.  276. 
Beaudean  v.  Cape  Girardeau,  71  Mo.  392. 

A.  By  Statutoky  Proceeding. 

There  are  in  every  State  statutes  providing  for  the 
establishment  of  highways,  and  for  their  alteration  and 
discontinuance. 

Some  of  these  acts  are  of  general  application  through- 
out the  State, — as  chapter  16  of  the  Revised  Statutes  of 
the  State  of  New  York  ;  others  are  special,  contained  in 
the  charters  of,  or  otherwise  pertaining  to  particular 
municipal  corporations. 

It  is  sufficient,  without  going  into  the  details  of  these 
statutes,  to  notice  that  they,  in  general,  authorize  cer- 
tain designated  officers  (in  New  York  called  commission- 
ers of  highways,  under  the  State  law),  to  lay  out  and 
alter  roads  or  streets,  and  they  provide  for  the  condem- 
nation of  the  required  land,  and  compensation  to  the 
owners. 


Highways,  now  Established.  41 

In  the  charters  of  municipal  corporations  it  is  cus- 
tomary to  provide  that  all  existing  streets  and  highways 

shall  be  public  highways. 

And,  in  such  a  case,  the  question  whether  or  not 
they  are  highways,  is  at  rest,  save  to  inquire,  as  matter 
of  fact,  whether  given  streets  come  within  that  statute. 

Hickok  v.  Pittsburgh,  41  Barb.  130. 

In  determining  that  question,  a  provision  of  the  char- 
ter relieving  the  city  of  the  control  of  a  portion  of  it,  does 
not  detract  from  the  character  of  any  part  of  it  in  actual 
public  use  as  a  highway. 

Baxter  v.  Warner,  G  Hun,  585. 

B.    By  Prescription. 

1.  In  some  States  statutes  exist,  prescribing  a  length  of 
uninterrupted  user  of  roads  which  shall  give  rise  to  the 
presumption  that  the  same  are  public  highways,  and  shall 
constitute  them  such.  In  other  States  it  is  held  that  the 
period  of  the  statute  of  limitations  in  real  property 
actions  is  applicable  for  that  purpose. 

2.  In  New  York,  it  is  provided,  in  the  general  highway 
law,  that  "all  roads  not  recorded,  which  have  been,  or 
shall  have  been,  used  as  public  highways  for  twenty 
years  or  more,  shall  be  deemed  public  highways."  The 
same  act  also  provides  that  all  highways  that  have 
ceased  to  be  traveled,  or  used  as  such  for  six  years,  shall 
cease  to  bo  highways  for  any  purpose. 

2  E.  S.  7th  ed.  p.  1248,  H  99,  100. 


42  Law. 

"  Formerly,  the  user  must  have  boen  twenty  years 
previous  to  and  next  preceding  March  21,  1797  (1 
K.  L.  1801,  p.  595  ;  2  E.  L.  1813,  277,  §  24) ;  and  this 
[supreme]  court  seems  to  have  considered  itself  bound 
to  allow  no  claim  founded  on  user  for  any  other  term 
(Galatian  v.  Gardner,  7  Johns.  106 ;  People  v.  Lawson, 
17  Id.  277).  But  twenty  years'  general  occupation  was 
allowed  by  the  act  of  February  21,  1817  (Laws  of  1817, 
p.  32,  §  3)." 

Pearsall  v.  Post,  20  Wend.  Ill,  at  p.  116. 

Under  this  act  it  was  decided  in  Devenpeck  v.  Lam- 
bert, 44  Barb.  596,  that  an  uninterrupted  user  for  more 
than  twenty  years  constitutes  a  street  by  prescription, 
notwithstanding  : 

(1)  The  several  owners  of  the  land  did  not  so  intend  ; 

(2)  The  owner  be  a  lunatic,  an  infant,  or  a  married 
woman ; 

(3)  And  had  no  knowledge  of  the  user  during  the 
entire  term. 

Also  that  declarations  of  an  owner  that  he  did  not 
intend  dedication,  would  not  take  the  place  of  actual 
interruption  of  user. 

In  He  Eebuilding  Bridge,  &c,  100  N.  Y.  642,  the 
question  was  suggested  whether  mere  user  by  the  public 
for  twenty  years,  without  any  action  of  the  town  authori- 
ties in  laying  out,  or  recording  or  improving  or  accepting 
the  road,  would  make  a  highway.  But  the  question  was 
unnecessary  to  the  decision  of  the  case,  and  was  not  dis- 
cussed. 


Highways,  how  Established.  43 

In  Cole  v.  Van  Keuren,  GT.&C.  480  ;  64  N.  Y.  G46, 
held,  that  the  record  of  a  highway  under  the  general 
highway  act  is  not  conclusive,  upon  the  question  of  pre- 
scription, upon  the  owner  of  the  soil,  claiming  it  as  ;t 
private  road. 

3.  In  other  States,  (a)  In  Massachusetts,  it  has  been 
held  that  if  for  more  than  twenty  years  there  has  been  a 
constant  and  uninterrupted  use  of  a  sidewalk  by  the 
public,  under  a  claim  of  right  to  use  it  as  part  of  a  pub- 
lic street,  the  city  is  liable  for  a  defect  in  it. 

Veale  v.  Boston,  135  Mass.  187. 

(b)  In  Iowa,  that  to  establish  a  highway  by  prescrip- 
tion, there  must  have  been  a  general,  uninterrupted  use 
by  the  public,  under  a  claim  of  right,  for  ten  years,  being 
the  period  prescribed  by  the  statute  of  limitations. 

State  v.  Tucker,  36  Iowa,  485. 
State  v .  Green,  41  Iowa,  693. 

(c)  In  Indiana,  that  a  road  becomes  a  public  high- 
way by  twenty  years'  user,  or  in  less  time  with  the  assent 
of  the  owner,  and  such  use  that  public  and  private  inter- 
ests would  be  affected  by  a  change. 

Ross  v.  Thompson,  78  Ind.  90. 

(d)  In  Illinois,  that  a  street  thrown  open  for  public 

use,  and  used  by  the  public  over  twenty  years,  becomes  a 

highway. 

Chicago  v.  Wright,  69  HI.  318. 

Also,  that  a  tract  of  land  used  for  a  public  road,  and 
traveled  generally  by  the  public  as  such,  without  objec- 


44  "  Law. 

tion  by  the  owner,  for  more  than  twenty  years,  though 
not  fenced  on  either  side,  may  become  a  highway  by 
prescription. 

Slingart  v.  Holliday,  2  111.  Ap.  45. 

(e)  In  North  Carolina,  the  period  is  twenty  years. 
But  mere  use  of  a  foot-path  or  neighborhood  road  for 
twenty  years,  will  not  constitute  a  dedication. 

Boyden  v.  Aehenbach,  74  N.  C.  539. 

(g)  In  Minnesota,  the  period  is  fixed  by  statute  a^  six 
years. 

Minn.  Gen.  St.  1878,  ch.  13,  §  47. 

This  statute  held  to  be  purely  prospective,  in 
State  v.  Waholz,  28  Minn.  114. 


Certain  special  provisions,  fixing  a  short  limitation 
in  various  municipal  corporations  in  New  York,  are 
merely  in  aid  of  establishing  dedication  or  acceptance  of 
streets,  and  will  be  considered  in  that  connection. 

C.  By  Dedication. 

1.  Dedication  and  acceptance.  The  third  method  of  estab-  . 
lisidng  highways,  and  the  one  which  has  given  rise  to  far  the 
greater  part  of  the  adjudication  upon  the  subject,  involves  two 
elements :  First,  a  dedication  by  the  owner  of  the  fee  or  by 
some  one  having  the  right  to  dedicate  ;  and  second,  an  accept- 
ance by  the  public. 

Niagara  Falls  Suspension  Bridge  Co.  v.  Bachman, 
66  N.  Y.  261. 


Highways,  how  Established.  45 

Chicago  r.  Thompson,  9  111.  Ap.  524. 
Browue  v.  Bowdoinham,  71  Me.  144. 

This  is  an  elementary  principle,  and  is  laid  clown  or 
implied  in  all  the  cases  cited  below. 


Dedication  defined.  "  Dedication,  as  the  term  is  used 
with  reference  to  this  subject,  is  tliL;  act  of  devoting  or 
giving  property  for  some  proper  object,  and  in  such  man- 
ner as  to  conclude  the  owner." 

Hunter  v.  Trustees  of  Sandy  Hill,  6  Hill  407,  at  p. 
411. 

"  An  act  by  which  the  owner  of  the  fee  gives  to  the 
public,  for  some  proper  object,  an  easement  in  his  lands." 

Curtis  r.  Keesler,  14  Barb.  511,  at  p.  521. 


3.    Necessity  of  proof.     The  intent  to  dedicate  »>>'st  /*  clearly 
manifested. 

Grinnell  v.  Kirtland,  2  Abb.  N.  C.  386  ;  S.  C.,  6 
Daly,  356  ;  S.  C,  aff'd,  without  opinion.  68  N. 
Y.  629. 

McMannis  v.  Butler,  51  Barb.  436. 

Holdane  v.  Cold  Spring,  21  N.  Y.  474. 

Niagara  Falls,  &o.  Bridge  Co.  r.  Bachman,  66  N.T. 
261. 

Flack  v.  Green  Island,  23  W.  Dig.  534. 

Pierpoint  v.  Harrisville,  9  W.  Va.  215. 

State  v.  Tucker,  36  Iowa,  4?5. 

Sullivan  >:  State,  52  Iml.  309. 
•Chicago  v.  Thompson,  9  111.  Ap.  524. 

Porter  r.  Attica,  33  Hun,  Oof,. 

People  r.  Blake,  60  Cal.  497. 

Wiggins  r.  Tallmadge,  11  Barb.  457. 

Carpenter  r.  Gwycn,  35  Barb.  395. 


46  Law. 

4.  Manner  of  proof.  "While,  of  course,  a  direct  convey- 
ance of  land  or  an  easement  in  land  for  a  highway  to  the 
public  authorities  would  constitute  a  dedication,  that  is 
not  essential  or  at  all  usual. 

JSfo  deed  or  other   ivriting  is  necessary  to  constitute  dedi- 
cation. 

Cook  v.  Harris,  61  N.  Y.  448. 
Hunter  v.  Sandy  Hill,  6  Hill,  4C7. 
Curtis  v.  Keesler,  14  Barb.  511,  at  p.  521. 


5.  Intent.    Shown  by  acts.     Dedication  may  be  established 

by  any  evidence  which  shoivs  the  intent  of  the  owner  to  dedicate. 

The  intent  may  be  inferred  from  acts  and  declarations  of  the 

owner. 

Sheen  v.  Slothart,  29  La.  An.  630. 

Brakken  v.  Minneapolis,  &c.  By.  Co.,  29  Minn.  41. 

People  v.  Blake,  60  Cal.  497. 

Cook  v.  Harris,  61  N.  Y.  448. 

Be  Cooper,  6  W.  Dig.  144. 

McMannis  v.  Butler,  51  Barb.  436. 

Wiggins  v.  Tallmadge,  11  Barb.  457. 

Denning  v.  Boome,  6  Wend.  651. 

In  Wiggins  v.  Tallmadge,  the  act  of  dedication  con- 
sisted in  the  opening  of  a  lane  or  road  by  two  owners 
upon  their  boundary  line,  to  accommodate  the  adjoining 
lands. 

In  He  Cooper,  it  consisted  in  grading,  paving  and 
guttering,  and  in  Denning  v.  Eoome  the  former  owner 
paid  an  assessment  for  paving. 


6.  Conveyance  by  map-     A  conveyance  of  lots  with  refer- 
ence  to  a  map,  on  which   the  land  is  laid  off  in  streets  and 


Highways,  how  Established.  47 

squares,  whether  the  map  is  made  andfibed  by  the  oioner(X)<>r  is 

a  public  map,{2)  is,  as  to  the  oivru  r,  a  dedication  of  the  streets, 

alleys  and  squares  referred  to,  to  tk  extent  and  as  designated 

on  the  map. 

(>)  Dewitt  v.  Itliaca,  15  Hun,  568. 

McMannis  r.  Butler,  51  Barb  436. 

Bridges  v.  Wyckoff,  67  N.  Y.  130. 

Taylor  v.  Hopper,  2  Hun,  646  ;  62  N.  Y.  649. 

Child  v.  Chappell.  9  N.  Y.  246,  at  p.  257. 

Post  v.  Pearsall,  22  Wend.  126. 

(See  many  cases  cited  at  p.  435. ) 

Cox  v.  James,  45  N.  Y.  557. 

Baton  Rouge  v.  Bird,  21  La.  An.  244. 

Bartlett  r.  Bangor,  67  Maine,  460. 
(*)  Re  Ingraham,  4  Hun,  495.  64  N.  Y.  310. 

Clark  r.  Elizabeth,  40  N.  J.  L.  172. 

Re  Thirty-ninth  Street,  1  Hill,  191. 

Bissell  v.  N.  Y.  C.  R.  R.  Co.,  23  N.  Y.  61. 

People  v.  Lambier,  5  Denio,  9. 

People  v  Loehfelm,  102  N.  Y.  1. 

Also  cases  cited  next  below. 

7.  Contra.  But  as  in  tin-  public,  if  is  but  an  offer  to  ded- 
icate, and  is  not  complete  until  accepted  by  competent  authority, 
or  by  user. 

Dewitt  r.  Ithaca,  15  Hun,  568. 

Oswego  r.  Oswego  Canal  Co.,  6  N.  Y.  257. 

Underwood  v.  Stuyvesant,  19  Johns.  181. 

Wohler  v.  Buffalo  &  State  Line  R.  R.  Co.,  46  NT. 

686. 
Niagara  Falls,  etc.  Br.  Co.  r.  Bachman,  66  N.Y.  261. 

Taylor  v.  Hopper,  62  N.  Y.  649. 

Re  Ingraham,  4  Hun,  495. 

Strong  r.  Brooklyn,  68  N.  Y.  1. 

Child'  v.  Chappell,  9  N.  Y.  246. 

8.  Right  of  way.  And  as  to  the  owner  it  is  only  good  as  a 
right  of  way,  until  accepted. 

Badeau  r.  Mead,  14  Barb.  328. 
Taylor  r.  Hopper,  62  N.Y.  649. 


48  Law. 


Holdane  v .  Cold  Spring,  21  N.  Y.  474. 

Fonda  v.  Borst,  2  Abb.  Dec.  155  ;  2  Keyes,  48. 

Grinnell  v.  Kirtland,  2  Abb.  N.  C.  386. 


In  Badeau  v.  Mead, — a  case  arising  in  the  country,—^ 
it  was  assumed  that  the  rule  would  be  different  as  to  city 
lands. 

In  Grinnell  v.  Kirtland,  however,  it  is  expressly  held 
to  apply  as  well  to  urban  as  to  rural  property. 


9.  Map,  by  whom  made.  The  map  must  have  been  made 
or  accepted  by  the  owner  of  the  premises,  or  by  some  one 
having  the  right  to  dedicate  the  land. 

Ee  Rhinelander,  68  N.  Y.  105. 

In  this  case,  it  was  held  that  where  the  map  was 
made  by  the  municipal  authorities,  and  the  owners  had 
nothing  to  do  with  it,  the  mere  fact  that  the  land  on  each 
side  of  the  street  was  afterwards  divided  into  lots,  is 
without  significance. 

In  People  v.  Brooklyn,  48  Barb.  211,  the  map  was 
made  and  filed  by  commissioners  in  a  partition  suit,  upon 
actual  partition  of  the  land  among  tenants  in  common. 
All  subsequent  conveyances  carried  to  the  centre  of  the 
streets ;  one  of  them  describing  the  land  within  the 
street  as  subject  to  the  public  use  as  a  highway.  Held, 
that  the  original  map  and  partition  was  a  dedication,  and 
that  the  subsequent  sales  must  be  interpreted  as  convey- 
ing as  and  for  the  purposes  of  public  streets. 


Highways,  how  Established.  49 

In  Flack  v.  Green  Island,  23  W.  Dig.  534,  held,  that  a 
map  made  by  a  civil  engineer,  and  recognized  for  years 
by  the  owners  and  the  public  authorities,  and  adopted 
by  unmistakable  acts,  is  equally  conclusive  for  all  pur- 
poses of  a  dedication  as  if  made  by  the  land-owners,  or 
by  their  direction. 

10.  Actual  map.  To  constitute  a  dedication,  the  deed  must 
re/er  to  a  street  or  avenue  actually  laid  out  on  maps  actually 
made  and  filed. 

Be  Eleventh  Avenue,  49  How.  Pr.  208.81  N.  Y.  433. 

11.  Inference  from  user.  There  seems  to  be  a  line  of 
authorities  holding  that,  aside  from  prescription,  dedica- 
tion by  the  owner  may  be  inferred  from  uninterrupted 
user  for  a  great  length  of  time  ;  or,  at  least,  that  user 
may  be  an  element  in  determining  the  intent  of  the  owner. 
Among  such  cases  are  : 

Denning  v.  Boome,  6  Wend.  651. 

Curtis  v.  Keesler,  14  Barb.  511. 

Hunter  v.  Sandy  Hill,  6  Hill,  407. 

Wilson  v.  Sexon,  27  Iowa,  15. 

Daniels  v.  Chicago,  &o.  B.  B.  Co.,  35  Iowa,  129. 

Sullivan  v.  State,  52  Ind.  309. 

12.  Revocation.  Dedication  may  be  revoked  by  the  owner 
at  any  time  before  acceptance,  whether  by  express  corporate  or 
official  act,  or  user,  (*)  but  not  after.  (a) 

Bridges  v.  Wyckoff,  67  N.  Y.  130. 
Lee  v.  Sandy  Hill,  40  N.  Y.  442. 

Quaere  as  to  ('), 

Jordan  v.  Otis,  37  Barb.  50. 


50  Law. 

Contra  as  to  (1), 

M.  E.  Church  v.  Hoboken,  33  N.  J.  L.  13. 

Contra  as  to  (2), 

Adams  v.  Saratoga,  &c.  E.  B.  Co.,  11  Barb.  414. 
Eev'd  on  other  grounds,  10  N.  Y.  328. 
Cook  v.  Harris,  61  N.  Y.  448. 

(a)  Revocation  can  be  made  by  no  one  who  has  not 
succeeded  to  the  title  of  the  original  proprietors. 

McMannis  v.  Butler,  51  Barb.  436. 

(b)  "Whether    the    revocation   is   made   by  putting  a 

building  partly  across  the  street,  is  a  question  for  the 

jury. 

Id. 


13.  Acceptance,  generally.  Dedication  of  land  or  an  ease- 
ment, by  the  owner  of  the  fee,  is  not  enough  to  constitute  a  high- 
way. This  must  be  supplemented  by  an  acceptance  of  the 
same,  either  express  or  implied. 

See  cases  cited  under  (7)  above  ;  also,  next  section. 
Corwin  v.  Corwin,  24  Hun,  147. 
Eozell  v.  Andrews,  103  N.  Y.  150. 

14.  How  proven.  Acceptance  must  be  clearly  proven,  either 
by  formal  action  or  by  distinct  and  unequivocal  circumstances. 

McMannis  v.  Butler,  51  Barb.  436. 

Holdane  v.  Cold  Spring,  21  N.  Y.  474. 

Niagara  Falls,   &c.    Bridge   Co.   v.  Bachman,    66 

N.  Y.  261. 
Grinnell  v.  Kirtland,  2  Abb.  K  C.  386. 
Byrne  v.  N.  Y.  C.  &  H.  E.  E.  E.  Co.,  94  N.  Y.  12. 
Fonda  v.  Borst,  2  Abb.  Dec.  155. 
Clements  v.  West  Troy,  16  Baib.  251. 


Highways,  how  Established.  51 

Jordan  r.  Otis,  37  Barb.  50. 

Oswego  v.  Oswego  Canal  Co.,  G  N.  Y.  257. 

Bissell  v.  N.  Y.  C.  B,  It  Co.,  23  N.  Y.  61. 

Booraem  v.  No.  Hudson  By.  Co.,  39  N.  J.  Eq.  465. 

Ex  parte  Pittsburgh  Alley,  104  Pa.  St.  622. 

Manderscbid  v.  Dubuque,  29  Iowa,  73. 

State  v.  Tucker,  36  Iowa,  485. 

Forbes  v.  Balenscifer,  74  111.  183. 

Flack  v.  Green  Island,  23  W.  Dig.  531 

15.  Acts  to  prove.    It  may  he  proven  by  acts  of  the  mum  - 
pality  or  its  officers. 

Cook  r.  Harris,  61  N.  Y.  448. 
Hillier  v.  Sharon  Spr.,  28  Hun,  344. 
Sewell  v.  Cohoes,  75  N.  Y.  45. 
Niven  r.  Boehester,  76  N.  Y.  619. 
Sckomer  v.  Boehester,  15  Abb.  N.  C.  57. 
Tierney  v.  Troy.  41  Hun,  120. 
People  v.  Loehfelm,  102  N.  Y.  1. 
Pomfrey  v.  Saratoga  Springs,  104  N.  Y.  459. 
And  many  other  cases. 

Among  the  acts  may  be  mentioned  a  few,  as : 

(a)  Resolution  to  enter  street  in  records. 

Be  Cooper,  6  W.  Dig.  144. 

(b)  Taking  charge  of,   regulating,  paving  and  repair- 
ing. 

Sewell  v.  Cohoes,  sujiru. 
McMannis  v.  Butler,  51  Barb.  436. 
Shartle  v.  Minneapolis,  17  Minn.  308. 

Laying  gas  and  water  pipes,  and  lighting  street. 

Be  Ingraham,  4  Hun,  495. 

Modified,  on  other  grouuds,  Gi  N.  Y.  310. 

(c)  Resolutions  of  common  council  as  to  same. 

Same  cases  ;  also, 

Schomer  v.  Boehester,  15  Abb.  N.  C.  57. 

Niven  v.  Boehester,  76  N.  Y.  619. 


52  Law. 

16.  User.    Acceptance  may  be  proven  by  user,  with  other 

evidence. 

Curtis  v.  Keesler,  14  Barb.  511. 

Pomfrey  v.  Saratoga,  34  Hun,  607  ;  104  N.  Y.  459. 

Sewell  v.  Cohoes,  75  N.  Y.  45. 

People  v.  Blake,  60  Cal.  497. 

Brakken  v.  Minneapolis,  &c.  By.  Co.,  29  Minn.  41. 

Dewitt  v.  Ithaca,  15  Hun,  568. 

Kennedy  v.  Le  Van,  23  Minn.  513. 

Manderschid  v.  Dubuque,  29  Iowa,  73. 

Forbes  v.  Balenseifer,  74  HI.  183. 

Flack  v.  Green  Island,  23  W.  Dig.  534. 

People  v.  Loehfelm,  102  N.  Y.  1. 

Driggs  v.  Phillips,  103  N.  Y.  77. 

17.  Adjudications  as  to  user.  The  effect  of  user  is  usually 
considered  in  cases  involving  its  effect  upon  both,  dedica- 
tion and  acceptance.  For  that  reason  it  has  been  thought 
best  to  examine  a  few  of  such  cases  in  this  dual  capacity. 

(a)  To  constitute  dedication  by  user,  no  particular 
time  is  necessary.  If  express  and  unequivocal,  a  short 
time  is  enough. 

Carpenter  v.  Gwynn,  35  Barb.  395. 

Clements  v.  West  Troy,  10  How.  Pr.  179. 

Curtis  v.  Keesler,  14  Barb.  511. 

Hunter  v.  Sandy  Hill,  6  Hill,  407, 

Child  v.  Chappell,  9  N.  Y.  246. 

Cook  v.  Harris,  61  N.  Y.  448. 

McMannis  v.  Butler,  51  Barb.  448. 

Denning  v.  Roome,  6  Wend.  651. 

Hiner  v.  Jeanpert,  65  HI.  428. 

Ogle  v.  Phila.,  &c.  B.  R.  Co.,  3  Houst.  (Del.)  267. 

In  Denning  v.  Eoome,  it  is  stated  that  the  length  of 
time  to  constitute  dedication  is  not  settled,  "probably 
because  the  presumption  does  not  depend  on  that 
alone." 


Highways,  how  Established.  53 

(b)  It  should  be  for  such  a  length  of  time  that  the 
public  accommodation  and  private  rights  might  be  ma- 
terially affected  by  an  interruption  of  the  enjoyment. 

Cincinnati  v.  "White,  6  Peters,  431. 
McMannis  v.  Butler,  51  Barb.  436. 

(c)  User  even  for  more  than  twenty  years  against  the 
will  of  the  owner  cannot  be  urged  by  the  public  as  the 
foundation  of  prescription  or  evidence  of  dedication. 

PearsaU  v.  Post,  20  Wend.  Ill ;  22  Wend.  425. 
Pearsall  r.  Hewitt,  20  Wend.  Ill  ;  22  Wend.  559. 
Sullivan  v.  State,  52  Ind.  309. 

(d)  ''  It  is  to  be  borne  in  mind  that  mere  user  is  not 
sufficient ;  though  user  may  be  taken  in  connection  with 
other  evidence  to  prove  actual  dedication.  To  show  that 
persons  have  exercised  the  right  for  a  series  of  years,  is 
but  a  link  in  the  chain  of  proof  to  establish  the  conclu- 
sion that  the  owner  of  the  fee  has  appropriated  or  set 
apart  and  given  to  the  public  an  easement  or  use  in  his 
land,  which  he  cannot  recall  at  pleasure." 

Curtis  v.  Keesler,  14  Barb.  523. 

(e)  User  alone,  to  constitute  dedication,  must  have 
continued  twenty  years. 

Gould  v.  Glass,  19  Barb.  179. 

And  then  the  importance  of  dedication  disappears, 
since  the  statute  makes  the  highway  by  prescription. 

Porter  r.  Attica,  33  Hun,  605. 


54  Law. 

(f)  In  People  v.  Livingston,  27  Hun,  105,  the  question 
of  user  as  establishing  dedication  was  considered. 

"  Fifty  years  ago,  the  owner  of  the  lot  tcld  some  of  his 
neighbors  that  if  they  would  help  him  build  a  stone-wall 
from  the  main  road  to  the  lake,  they  could  drive  their 
sheep  to  the  lake  and  wash  them  there.  They  helped 
him  build  the  wall,  and  since  then,  these  persons  and 
their  successors,  as  they  had  occasion,  drove  their  sheep 
across  this  lot,  which  adjoined  the  Knox  road  on  one 
side  and  the  lake  on  the  other,  to  an  enclosure  upon  the 
lake  shore,  and  there  washed  them.  As  this  lot  was  un- 
fenced  alon^  the  Knox  road,  the  public,  in  passing  to  and 
from  the  lake,  crossed  it  where  it  was  most  convenient. 
Picnic  parties,  fishermen  and  others  crossed  over  it  to 
and  from  the  lake.  In  the  winter,  ice  was  drawn  from 
the  lake  across  it,  and  sometimes  when  the  lake  was 
frozen  teams  were  driven  across  it  to  and  from  the  lake. 
There  is  no  regular  travelled  road  across  the  lot,  and  the 
evidence  is  that  when  people  crossed  it,  they  crossed  it 
in  different  places.  The  sheep,  it  is  true,  made  a  beaten 
path  from  the  Knox  road  to  the  sheep  pen,  but  there 
does  not  appear  to  have  been  any  other  well-defined  path. 
All  over  the  lot  were  wagon  and  cattle  tracks,  and  the 
evidence  fails  to  show  that  the  travel,  except  by  the 
sheep,  was   in  an  uniform  route,  and  except  that  on  the 

shore  of  the  lake,  the  tracks  were  more  united 

The  license  given  by  the  owner  of  the  land  to  those  who 
helped  him  build  his  stone-wall,  to  drive  their  sheep 
across  his  lot,  conferred  no  rights  upon  the  public.  .  . 
Leaving  the  sheep  path  out  of  the  case,  and  no  road 
across  the  lot  ever  existed,  unless  the  whole  lot  should 
be    condemned  for  that    purpose.     .     .    .     .     If  all  the 


Highways,  how  Established.  55 

•  travel  across  the  lot  for  the  last  twenty  years  had 
been  confined  to  one  route,  it  is  not  improbable  that 
a  highway  by  user  would  have  been  located  and  estab- 
lished ;  but  the  burden  was  upon  the  people  to  prove  a 
highway  over  the  route  they  described,  and  this  they 
utterly  failed  to  do." 

(g)  In  McMannis  v.  Butler,  51  Barb.  436,  a  map  had 
been  made  and  filed  by  the  proprietors  in  1827,  showing 
the  road,  which  was  in  continuous  public  use  from  1832 
to  1865.  Held,  accepted  by  public  user.  It  also 
appeared  in  the  case  that  the  street  had  been  accepted 
by  acts  of  the  common  council. 

The  rule  of  dedication  and  acceptance  by  user  is  laid 
down  in  that  case,  as  followrs  : 

Clear,  unequivocal  and  decisive  acts  of  the  owners, 
amounting  to  an  explicit  manifestation  of 'their  will  to  make 
a  permanent  abandonment  and  dedication  of  the  land,  is  suffi- 
cient to  establish  dedication. 

If  land  dedicated  is,  without  any  intermediate  'period, 
unequivocally  used  and  occupied  for  any  continuous  period 
of  time  by  the  public  at  large,  it  amounts  to  an  adoption  of  the 
dedication. 

(h)  In  Wiggins  v.  Tallmadge,  11  Barb.  457,  the  owners 
opened  a  road  to  accommodate  adjacent  lands. 

It  wras  used  forty  years  by  the  public ;  and,  more  than 
twenty  years  after,  the  authorities  had  connected  it  with 
a  public  road  beyond.  Held,  dedication  and  accept- 
ance. 


56  *  Law. 

18.  Statutory  acceptance  by  limitation.  In  many  munici- 
palities in  New  York,  there  is  a  statute  of  which  the 
Kochester  act  (Laws  of  1880,  chap.  14,  section  163)  is  an 
example : 

"  Whenever  any  street,  alley  or  lane  shall  have  been 
opened  to  or  used  by  the  public  for  the  period  of  five 
years,  the  same  shall  thereby  become  a  street,  alley  or 
lane  for  all  purposes,  and  the  said  common  council  and 
executive  shall  have  the  same  authority  and  jurisdiction 
over  and  right  and  interest  in  the  same  as  they  have  by 
law  over  the  other  streets,  alleys,  lanes  and  highways, 
laid  out  over  it." 

Under  this  act,  held  that  no  formal  act  of  acceptance, 
other  than  the  acceptance  of  the  charter  containing  such 
section,  was  needed. 

Requa  v.  Rochester,  45  N.  Y.  129. 

Also,  that  it  was  not  intended  to  have  a  retroactive 
effect,  so  as  to  divest  parties  of  existing  rights. 

McMannis  v.  Butler,  49  Barb.  177.     (Reversed,  51 
Barb.  436,  on  other  grounds.) 

Under  the  Brooklyn  act  it  was  held  in  Baldwin  v. 
Jenkins,  1  W.  Dig-  398,  Brooklyn  city  court,  general 
term,  that  mere  throwing  open  and  use  would  not  have 
the  effect  of  dedication,  unless  accepted  by  the  authori- 
ties. 

This,  however,  would  seem  questionable,  in  view  of 
the  following  rule : 


Highways,  now  Established.  57 

Such  statutes  take  the  place  of  an  acceptance,  and  that  only. 
The  intention  of  the  ovmer  to  dedicate  must  still  be  proven. 

Strong  v.  Brooklyn,  68  N.  Y.  1. 
Morse  v.  Troy,  38  Hun,  301. 

In  the  latter  case,  the  accident  happened  May  1,  1877. 

The  land  had  been  deeded  in  1871,  with  a  proviso 
that  a  street  should  be  opened  on  or  before  June  1,  1872. 
Held,  that  five  years  not  having  elapsed,  there  was  no 
dedication  or  "  throwing  open  "  by  the  deed. 

Also  that,  although  the  owner  had  done  some  work- 
ing and  grading,  it  was  not  sufficient  (as  was  necessary) 
to  enable  the  city  to  have  accepted  the  dedication  at  the 
beginning  of  the  five  years  period,  or  at  any  time 
within  it. 


19.  Some  leading  cases.  It  may  be  useful  to  notice  a 
few  adjudications  upon  the  subject  of  dedication  and 
acceptance  of  streets,  as  applied  in  considering  the  lia- 
bility of  municipal  corporations  for  failure  to  keep  the 
streets  in  safe  condition  for  travel. 

(a)  In  Sewell  v.  Cohoes,  11  Hun,  G26  ;  75  N.  Y.  45,  the 
hats  in  quo  was  a  strip  of  land  along  the  Erie  canal,  upon 
State  land,  but  which  the  city  had  caused  to  be  paved 
and  graded,  and  it  was  used  as  a  public  street. 

This  was  crossed  by  a  bridge  so  low  that  the  plaintiff 
—the  driver  of  a  circus  wagon— was  struck  by  the  bridge 
and  injured. 

Held,  that  the  city,  by  its  action,  in  taking  charge  of, 


58  Law. 

regulating  and  grading,  was  estopped  from  denying  that 
the  place  was  a  public  highway. 

Also,  that  it  was  competent  to  prove  resolutions  of 
the  common  council  as  to  grading  and  paving. 

And  resolutions  after  the  accident,  directing  the 
removal  of  the  bridge,  to  show  that  the  city  exercised 
control. 

(b)  In  Hiller  v.  Sharon  Springs,  28  Hun,  344,  held, 
that  though  an  individual  cannot,  by  putting  a  sidewalk 
along  his  premises,  compel  the  authorities  to  accept  it  : 
yet,  where  he  does  so  construct  one,  not  merely  for  his 
private  benefit,  the  authorities  may,  by  their  acquies- 
cence and  other  acts,  show  their  acceptance,  and  thus 
bind  themselves  to  keep  the  sidewalk  in  repair. 

That  no  distinct  act  of  adoption  or  acceptance  need 
be  shown,  nor  any  positive  recognition  of  it. 

(c)  In  Porter  v.  Attica,  33  Hun,  605,  the  defective 
sidewalk  was  at  the  intersection  of  a  street  with  a  way 
leading  to  several  dwellings  ;  the  way  had  been  there 
forty  years,  and  the  houses  twenty  or   more. 

Upon  a  change  of  grade  of  the  sidewalk  on  the  street, 
that  of  the  way  had  not  been  changed  ;  but  the  authori- 
ties had  provided  an  earth  approach  to  it.  This  washed 
away,  and  the  hole  thus  formed  caused  the  injury. 

Held,  for  the  jury  to  say  whether  it  had  become  a 
highway,  so  that  the  village  were  bound  to  repair  it,  both 
as  to  user  and  dedication  and  acceptance. 


Highways,  how  Established.  59 

(The  opinion  in  this  case  contains  a  useful  examina- 
tion of  authorities  showing  different  rulings  upon  the 
question  of  user  as  constituting  acceptance.) 

(d)  In  Pomfrey  v.  Saratoga  Springs,  34  Hun,  G07, 
the  injury  was  caused  by  snow  falling  from  a  roof  upon 
a  sidewalk  in  a  village. 

It  was  part  of  a  continuous  street ;  had  been  so  used 
for  many  years ;  the  city  had  put  a  sidewalk  upon  part 
of  the  street, 

The  owner  used  the  space  in  question  to  cross  to  his 
barn,  and  left  and  washed  carriages  there  ;  the  public 
used  it  as  a  sidewalk.     There  had  been  no  formal  accept- 


ance. 


Held,  that  the  jury  were  justified  in  finding  dedication 
and  acceptance. 

This  case  was  distinguished  in  Veeder  v.  Little  Falls, 
100  N.  Y.  343,  upon  the  ground  that  the  dangerous 
embankment  there  was  on  State  land,  where  the  village 
had  wrongfully  placed  a  street,  and  where  they  had  no 
right  to  put  a  railing. 

20.  Miscellaneous  adjudications. 

(a)  The  highway  act  of  1813,  stating  that  if  a  road  ia 
not  opened  or  worked  within  six  years  from  the  time  of 
laying  out,  it  shall  cease  to  be  a  highway,  does  not  refer 
to  those  dedicated  to  public  use. 

McMannis  r.  Butler,  51  Barb.  436. 


60  Law. 

(b)  Dedication  as  a  private  way,  or  any  length  of  user 
as  such,  is  not  enough. 

State  v.  Tucker,  36  Iowa,  485. 

(c)  Dedication  may  be  established,  although  proven 
as  to  only  part  of  the  highway. 

Havana  v.  Biggs,  58  HI.  483. 

(d)  So,  though  there  be  no  outlet,  or  the  street  end  in 

a  private  way. 

Saunders  v.  Townsend,  26  Hun,  308. 
Wiggins  v.  Tallmadge,  11  Barb.  457. 
People  v.  Kingman,  24  N.  Y.  559. 
People  v.  Van  Alstyne,  3  Abb.  Dec.  575. 
See  discussion,   Hickok   v.  Plattsburgh,  41   Barb. 
130. 

(e)  Or  though  it  be  only  a  public  foot-way. 

Tyler  v.  Sturdy,  108  Mass.  196. 

(A  list  of  useful  authorities  on  dedication  is  found  at 
2  Abb.  N.  C.  400,  note.) 


CHAPTER    V. 

GENERAL    LIABILITY    OF    CITIES. 

1.  Introductory. 

2.  Rule. 

3.  Occasions  of  liability. 

4.  Subjects  suggested. 

1.  Introductory.  Having  thus  far  noticed  certain  inci- 
dental and  preliminary  subjects,  we  come  to  the  principal 
topic, — the  liability  of  municipal  corporations  to  respond 
in  damages  to  persons  injured  by  unsafe  streets. 

2.  General  rule.  The  general  principle  of  such  liabil- 
ity is  nowhere  better  stated  than  in  the  case  first  below 
cited,  as  follows : 

Municipal  corporations  proper,  having  the  powers  ordini- 
rily  conferred  upon  them  respecting  streets  icithin  their  limits, 
owe  to  the  public  the  duty  to  keep  them  in  a  safe  condition  for 
use  in  the  usual  mode  by  travellers,  and  are  liable  in  a  civil 
action  for  special  injury  resulting  from  neglect  to  perform  this 
duty. 


Citing 


Ehrgott  v.  New  York,  96  N.  Y.  264,  at  p.  271. 

New  York  v.  Furze,  3  Hill,  612. 
Conrad  v.  Ithaca,  16  N.  Y.  158. 
Requa  v.  Rochester,  45  N.  Y.  129. 
Barnes  r.  District  of  Col.,  91  U.  S.  540. 
Hutson  v.  New  York,  9  N.  Y.  163. 
Davenport  r.  Ruckman,  37  N.  Y.  568. 
Hume  v.  New  York,  74  N.  Y.  264. 

[61] 


62  Law. 

And  cited  in 

Hunt  v.  New  York,  52  Super.  198. 

See  also, 

Reinhard  v.  New  York,  2  Daly,  243. 
Gorham  v.  Coopersfcown,  59  N.  Y.  660. 
Knoxville  v.  Bell,  (Tenn.)  12  Lea,  157. 
Griffin  v.  WiUiamstown,  6  W.  Va.  312. 

And  other  cases  cited  in  chap.  VII.  §  L  post. 


And  this  is  true  by  night  as  well  as  by  day. 

Davenport  v.  Ruckman,  supra. 
Rome  v.  Dodd,  58  Ga.  238. 


3.  Occasions.  And  the  occasions  of  such  liability  are 
well  expressed  in  Atchison  v.  King,  0  Kansas,  550,  as 
follows : 

(1)  Negligent  construction  of  street  by  city. 

(2)  Causing  defects  therein  after  they  are  made. 

(3)  Negligently  permitting  defects  to  continue. 

Or,  as  stated  in  Gorham  v.  Cooperstown,  59  N.Y.  660  : 
"  Municipal  corporations  are  not  guarantors  for  the 
absolute  safety  of  all  persons  from  injury  by  reason  of 
defects  in  or  obstructions  of  the  streets  or  highways  of 
the  municipality.  They  are  only  liable  when  the  defects 
or  obstructions  are  the  results  of  their  acts,  or  of  some 
neglect  or  omission  of  duty  by  them  or  their  servants  or 
agents  ;  and  individuals  in  the  use  of  streets  receive 
injuries  therefrom  without  fault  on  their  part ;  some 
overt  act  of  the  municipality  or  its  officers,  resulting  in 
injury  to  third  persons,  or  some  neglect  or  omission  of 
duty  in  repairing  defects  or  removing  obstructions,  must 


General  Liability  of  Cities.  C3 

be  established,  in  order  to  charge  the  municipality  with 
the  consequences  of  any  defects  in  or  obstructions  of 
the  thoroughfares  within  the  corporation." 

4.  Subjects  suggested.  The  above  rule  and  synopsis 
suggest  many  considerations,  some  of  which  will  be 
more  or  less  fully  treated  in  subsequent  chapters.  The 
arrangement  of  them  will  not  perhaps  be  wholly  logical, 
but  follow  the  sequence  which  seems  to  the  writer  to  be 
as  natural  as  any. 


CHAPTER  VI. 

WHO  TO  BE  PEOTECTED,  AND  WHEEE. 

A.  Who  to  be  Protected. 

1.  New  York  rule. 

2.  In  some  States,  travellers  only. 

B.  The  Locus  in  Quo. 

1.  Introductory. 

2.  Highway  within  limits. 

3.  Place  treated  as  street. 

4.  Eight  to  whole  street. 

5.  Cross-walk. 

6.  Side-walk. 

7.  Access  from  private  property. 

8.  Bridge  and  approaches. 

9.  Common  path. 

10.  Apparent  walk. 

11.  Place  off  street. 

A.    Who  Entitled  to  Protection. 

1.  New  York  rule.    Protection  in  this  State  is  extended  to 
every  one  lawfully  using  the  streets. 

Eehberg  v.  New  York,  91  N.  Y.  137. 
McGarry  v.  Loomis,  63  N.  Y.  104. 
McGuire  v.  Spence,  91  N.  Y.  303. 
Eunz  v.  Troy,  5  N.  Y.  St.  E.  642. 

In  the  case  first  above  cited,  the  injury  was  to  a  work- 
man engaged  in  excavating  the  street  (so  said  at  91  N.  Y. 

p.  306).     In  the  other  cases,  it  was  to  children  playing. 
[64] 


Who  to  be  Protected,  and  Where.  65 

The  same  rule  applies  iu  Illinois, 

Chicago  v.  Keefe,  32  Alb.  L.  J.  362. 

and  Maryland. 

Hussey  p.  Ryan,  4  East.  R.  462. 

In  McGarry  v.  Loomis  the  court  say  : 

"  That  it  is  not  unlawful,  wrongful  or  negligent  for 
children  on  the  sidewalk  to  play,  is  a  proposition  which 
is  too  plain  for  comment." 

In  Chicago  v.  Keefe  :  "  Those  using  the  streets  for 
recreation  or  for  pleasure,  or  for  mere  idle  curiosity,  so 
that  they  do  not  infringe  upon  the  rights  of  others  to  use 
them,  are  equally  within  the  protection  of  the  law  while 
using  them,  and  hence  equally  entitled  to  have  them  in  a 
reasonably  safe  condition,  with  those  who  are  passing 
along  them  as  travellers,  or  in  the  pursuit  of  their  daily 
avocations." 

2.  In  some  States  the  rule  prevails  that  only  travellers 
are  protected. 

Blodgett  v.  Boston,  8  Allen,  237. 
McCarthy  v.  Portland,  67  Me.  167. 
Donoho  v.  Vulcan  Iron  Works,  75  Mo.  401. 

But  in  New  Hampshire,  where  such  a  rule  prevails, 
it  has  been  held,  that  for  a  boy  to  stand  from  three  to  five 
minutes  upon  a  public  highway  to  see  a  procession  pass, 
does  not,  as  matter  of  law,  exclude  him  from  the  class  of 
"travellers." 

Varney  v.  Manchester,  58  N.  H.  430. 


G6  Law. 

B.  The  Locus  in  quo. 

1.  Introductory.  Having  considered  in  a  former  chapter 
the  somewhat  abstract  question  of  the  establishment  of 
highways,  we  now  may  notice  another  subject  somewhat 
akin  to  that,  but  more  intimately  connected  with  the 
main  subject  of  investigation ; — for  injuries  received  in 
what  places  must  a  municipal  corporation  respond  in 
damages  ? 

And  first  we  observe  that  the  actual  establishment  of 
a  street  by  any  of  the  ways  heretofore  considered  is  not 
always  necessary  to  fix  such  liability. 

2.  Highway  within  limits.  A  highiuay  used  by  the  public, 
within  the  limits  of  a  municipal  corporation,  is  a  street  to 
such  an  extent  as  to  render  the  city  liable  for  the  consequences 
of  an  excavation  made  under  its  direction  and  left  unguarded. 

Brusso  v.  Buffalo,  90  N.  Y.  679. 
Lafayette  v.  Larson,  73  Ind.  367. 

This  in  New  York  city  includes  the  "  annexed  dis- 
trict." 

Bichard  v.  New  York,  48  Super.  315. 

And  it  makes  no  difference  that  the  street  is  unflagged 

;and  unpaved. 

Bullock  v.  New  York,  99  N.  Y.  654. 

3.  Treated  as  street.  If  the  authorities  of  a  city  or  town 
have  treated  a  place  as  a  public  street,  the  municipality  is 
responsible  for  its  condition,  and  cannot  throw  the  person 
injured  into  an  inquiry  into  the  manner  or  authority  of  its 

establishment. 

Avery  v.  Syracuse,  29  Hun,  537. 
Kehberg  v.  New  York,  91  N.Y.  137. 


Who  to  be  Protected,  and  Where.  G7 

New  York  v.  Sheffield,  4  Wall.  189. 
Tierney  v.  Troy,  41  Hun,  120. 

Whether  a  city  has  treated  a  particular  place, — e.  g., 
a  causeway  built  by  a  bridge  company, — as  a  street, 
is  a  question  for  the  jury. 

Manchester  v.  Ericsson,  105  U.  S.  347. 

4.  Right  to  whole  street.  Again,  the  question  arises, 
must  the  whole  street  be  kept  safe  for  travel,  or  is  the 
traveller  restricted  to  any  particular  part  ? 

Making  due  allowance  for  the  different  conditions  in 
villages  and  in  cities;  and  in  more  or  less  travelled 
thoroughfares ;  also  for  the  necessary  obstruction  of 
portions  of  streets  from  time  to  time  for  various  purposes, 
as  before  alluded  to,  the  rule  laid  down  in  a  recent  New 
York  case  is  a  safe  one. 

"As  a  general  rule,  the  public  are  entitled  not  only  to  a  />•  e 
-passage  along  the  streets,  but  to  a  free  passage  over  each  an  I 
every  portion  of  every  street." 

Lavery  v.  Hannigan,  52  Super.  463,  at  p.  467. 
Monongahela  v.  Fischer,  (Pa.)  2  Atl.  R.  87. 

5  Crosswalk.    A  crosswalk  is  part  of  the  street . 

Eines  v.  Lockport,  50  N.  Y.  236. 
Walker  v.  Lockport,  43  How.  Pr.  366. 
Brusso  v.  Buffalo,  90  N.  Y.  679. 
Goodfellow  v.  New  York,  100  N.Y.  115. 
Dickinson  v.  New  York,  92  N.  Y.  584. 
Detroit  v.  Putnam,  45  Mich.  263. 

This  includes  a  bridge  over  a  drain  at  a  street  cross- 
ing. 

Atlanta  v.  Champe,  66  Ga,  659. 


68  Law. 

6.  Sidewalk.    In  New  York  and  many  other  States  a  side- 
walk is  part  of  the  street.     (But  see  A,  supra.) 

Graves  v.  Otis,  2  Hill,  466. 

Ellis  v.  Lowville,  7  Lacs.  434. 

Fulton  v.  Tucker,  5  T.  &  C.  621. 

Wilson  v.  Watcrtown,  3  Hun,  508. 

Lavery  v.  Hannigan,  52  Super.  463. 

Koch  v.  Edge  water,  18  Hun,  407. 

Be  Burmeister,  76  N.  Y.  174. 

Pomfrey  v.  Saratoga  Spr.,  104  N.  Y.  459. 

And  many  other  New  York  cases. 

Providence  v.  Clapp,  17  How.  (U.  S.)  161. 

Cusick  v.  Norwich,  40  Conn.  375. 

Dooley  v.  Meriden,  44  Con.  117. 

Indianapolis  v.  Gaston,  58  Ind.  224. 

Tabor  v.  GraffmiUer,  (Ind.)  9  No.  East.  E.  721. 

But  not  in  others. 

Detroit  v.  Putnam,  45  Mich.  263. 
O'Neal  v.  Detroit,  50  Mich.  133. 
Dupuy  v.  Union,  46  N.  J.  L.  269. 

The  Michigan  statute  limits  the  right  of  action  to 
"public  highways,  bridges,  crosswalks  and  culverts." 

The  New  Jersey  act,  to  "insufficiency  or  want  of 
repair  of  any  public  road." 

Under  the  Michigan  act,  it  has  been  held  that  a  walk 
across  an  alley  is  a  crosswalk  and  not  a  sidewalk. 

Pequignot  v.  Detroit,  16  Fed.  Eep.  211. 

Under  certain  charters  in  New  York  it  has  been 
held  that  the  power  of  the  city  or  village  over  its  side- 
walks is  purely   discretionary,  and  that  no  action  will 

lie.     See 

Cole  v.  Medina,  27  Barb.  218. 
Peck  v.  Batavia,  32  Barb.  634. 
Hart  v.  Brooklyn,  36  Barb.  226. 


WHO  TO  BE  PllOTECTEDf  AND   Where.  G9 

7.  Access  from  private  property.  Iu  Massachusetts,  a 
statute  exempts  cities  from  liability  for  accidents  in  pri- 
vate ways  leading  into  public  ways. 

This  act  has  been  held  to  apply  to  the  space  between 
the  entrance  to  the  private  way  and  that  part  of  the  pub- 
lic way  which  is  worked  for  travel. 

Paine  v.  Brockton,  133  Mass.  561. 

A  similar  statute  exists  in  Iowa. 

Goodin  v.  Des  Moines,  55  Iowa,  67. 

8.  Bridges.  In  Kansas,  held,  that  a  bridge  wholly 
within  a  city,  is,  with  its  approaches,  a  part  of  the  street, 
and  the  same  liability  attaches — even  though  the  bridge 
was  originally  built  by  the  county. 

Eudora  v.  Miller,  30  Kan.  494. 

In  New  York,  that  if  bridge  and  approaches,  though 
owned  by  the  State,  are  treated  as  part  of  the  public 
street  by  the  city,  the  latter  is  liable  for  their  condition. 

Sckomer  v.  Bockester,  15  Abb.  N.  C.  57. 

And  the  duty  to  keep  a  bridge  in  repair  carries  with 
it  the  duty  to  keep  up  guards  or  rails  where  necessary. 

Hyatt  v.  Bondout,  44  Barb.  385. 

Though  this  would  not  apply  in  case  of  a  State  bridge 
where  the  city  had  no  right  to  place  railings. 

Carpenter  v.  Cohoes,  81  N.  Y.  21. 
Veeder  r.  Little  Falls,  100  N.Y.  343. 


70  i    Law. 

9.  Common  path.  For  leaving  unprotected  a  danger- 
ous precipice,  formed  by  cutting  a  road  across  a  com- 
monly used  path,  a  city  is  liable. 

Orme  v.  Bichmond,  79  Va.  86. 

And  generally,  for  a  commonly  used  path  in  the  mar- 
gin of  a  road,  or  otherwise. 

Potter  v.  Castleton,  53  Vt.  435. 
Aston  v.  Newton,  134  Mass.  507. 


10.  Apparent  walk.  Where  a  brace  was  put  across  a 
trench,  for  the  purpose  of  supporting  the  soil,  but  appa- 
rently for  a  cross-walk,  held  that  it  must  be  kept  safe. 

Finegan  v.  Moore,  46  N.  J.  L.  602. 

So  must  a  wooden  cover  to  a  water-box  in  a  sidewalk. 
Campbell  v.  Syracuse,  20  W.  Dig.  449. 

11.  Outside  street  line.  Whether  a  cellar  along  the  line 
of  the  street  is  a  defect  which  a  city  is  bound  to  rem- 
edy, (*)  or  whether  a  dangerous  place  outside  the  limits 
of  the  street  is  so  near  as  to  render  the  street  unsafe 
for  travel,  (2)  are  questions  for  the  jury. 

(')  Stack  v.  Portsmouth,  52  N.  H.  221. 
(*)  Warner  v.  Holyoke,  112  Mass.  362. 
Drew  v.  Sutton,  55  Vt.  586. 

Upon  the  question  of  dangers  off  the  street,  in  the 
following  cases,  recovery  was  allowed  : 


Who  to  be  Protected,  and  Where.  71 

(a)  Person   stepping  one  foot  off  the  sidewalk  to  a 
hydrant  two  feet  from  the  line. 

Duffy  v.  Dubuque,  63  Iowa,  171. 

(b)  Excavation  adjoining  sidewalk,  unguarded. 

Buuch  v.  Edenton,  90  N.  V.  431. 

(c)  Ice  on  pile  of  dirt  five  feet  wide  and  a  foot  hig"h, 
two  feet  off  beaten  track. 

Stafford  v.  Oskaloosa,  64  Iowa,  251. 

(d)  Injury  opposite  premises  occupied  by  plaintiff  as 

tenant. 

Avery  v.  Syracuse,  29  Hun,  537. 

And  in  the  following,  not : 

(a)  Hole   five    feet    from    highway,  in    outskirts    of 

village. 

Keyes  v.  Marcellus,  (Mich.)  28  Alb.  L.  J.  199. 

(b)  Place    of    accident,   twenty-eight    or   thirty    feet 

from  street. 

Daily  v.  Worcester,  131  Mass.  452. 

Kelley  v.  Columbia,  (Ohio)  31  Alb.  L.  J.  379. 

(c)  Generally,  away  from  street. 

Young  v.  Dist.  Col.,  3  MacArthur,  13/. 
Barnes  v.  Chicopee,  138  Mass.  67. 


T  CHAPTER    VII. 

LIABILITY,  HOW  CONFEKKED. 

i  1.  General  rule.    Charter  conferring  power. 

2.  Liability  dependent  on  charter. 

3.  Charters  in  New  York. 

4.  Corporations  exempt  by  charter. 

5.  Liability  based  on  agreement. 

6.  Power  implies  duty. 

7.  Theory  of  agency. 

8.  Liability  dependent  on  funds. 

1.  Conferred  by  charter.  Wherever  a  municipal  corpora- 
tion is  clothed  by  charter  with  exclusive  control  of  its  streets,  or 
its  common  council  or  trustees  are  empowered  to  care/or  and 
repair  the  streets  ;  or  are  clothed  with  the  powers  of  commis- 
sioners of  highways ;  the  corporation  is  liable  to  respond  in 
damages  to  the  person  injured  by  the  wrongful  or  negligent 
failure  to  keep  such  streets  safe  for  the  use  of  passengers 
thereon. 

Hutson  v.  New  York,  9  N.  Y.  163. 
Griffin  v.  New  York,  9  N.  Y.  456. 
Weet  v.  Brockport,  16  N.  Y.  161,  note. 
Conrad  v.  Ithaca,  16  N.  Y.  158. 
Barton  v.  Syracuse,  37  Barb.  292. 
Hyatt  v.  Rondout,  44  Barb.  385. 

[72] 


Liability,  how  conferred.  73 

Clark  v.  Lockport,  49  Barb.  580. 

Davenport  v.  Ruckman,  37  N.  Y.  568. 

McCarthy  r.  Syracuse,  46  N.  Y.  194. 

Requa  v.  Rochester,  45  N.  Y.  129. 

Mosey  v.  Troy,  61  Barb.  580. 

Hines  v.  Lockport,  50  N.  Y.  236. 

Diveny  v.  Elmira,  51  X.  Y.  506. 

Todd  v.  Troy,   61  N.  Y.  506. 

Weed  r.  Ballston,  76  N.  Y.  329. 

Albrittin  v.  Huntsville,  60  Ala.  486. 

Selma  v.  Perkins,  68  Ala.  145. 

Chicago  v.  Robbins,  2  Black,  418. 

Denver  v.  Dunsmore,  7  Col.  328. 

Delger  v.  St.  Paul,  14  Fed.  Rep.  567. 

Parker  v.  Macon,  39  Ga.  725. 

Sterling  v.  Thomas,  60  El.  264. 

Bohen  v.  "Waseca,  32  Minn.  176. 

Shartle  v.  Minneapolis,  17  Minn.  308. 

Barnes  v.  Dist.  Columbia,  91  U.  S.  540. 

(See  also  cases  in  different  States  cited  in  Barnes 

v.  Dist.  Col.,  at  page  551  ;  also  in  7  U.  S.  Digest 

N.  S.,  p.  594,  1 150.) 

The  examination  of  this  rule  involves  so  many  prin- 
ciples that  some  embarrassment  arises  as  to  the  proper 
order  in  which  to  consider  them. 


2.  Liability  depends  on  charter.  The  UabVity  of  a  munici- 
pal corporation  to  persons  injured  upon  its  streets  by  the 
negligence  of  its  officers  depends  upon  the  charter  or  statute 
under  which  it  was  incorporated. 

Yan  Yranken  v.  Schenectady,  31  Hun,  516. 
2  Dillon  Mun.  Cor.  g  538. 
Fulton  v.  Tucker,  5  T.  &  C.  621. 
Nicholls  v.  Minneapolis,  30  Minn.  545. 

And  the  extent  of  its  power  and  liability  is  wholly  in 
the  discretion  of  the  sovereign  power. 

Barnes  v.  Dist.  Col.,  91  U.  S.  540. 


74  Law. 

3.  Charters  in  New  York.  In  New  York  the  various 
cities  have  special  charters,  in  some  of  which  the  com- 
mon council  are  made  commissioners  of  highways,  in 
others  are  directly  given  power  to  repair  streets,  and  in 
some  both  provisions  are  united.  As  stated  in  the  rule 
above,  the  form  of  expression  is  immaterial.  The  vil- 
lages, since  1870,  are  established  under  a  general  statute, 
which  makes  the  village  a  separate  highway  district,  and 
makes  its  trustees  commissioners  of  highways,  with 
power  "  to  discontinue,  lay  out,  open,  widen,  alter, 
change  the  grade  or  otherwise  improve  roads,  avenues, 
streets,  lanes,  crosswalks  and  sidewalks." 

Session  Laws  of  1870,  p.  694,  \  1. 

Under  this  village  act  it  has  been  held  : 

(a)  That  a  village  incorporated  under  it  assumes  the 
duty  of  caring  for  and  repairing  its  streets,  and  for  its 
neglect  to  do  so  is  liable  to  a  party  injured. 

Nelson  v.  Canister,  100  N.  Y.  89. 

(b)  But  is  not  under  obligation  to  repair  bridges, — 
that  that  remains  in  the  town. 

Washburn  v.  Mount  Kisco,  35  Hun,  329. 


4.  Municipalities  exempt  by  charter.  From  the  fact  that 
the  liability  is  statutory,  it  follows  that  it  may  be  lim- 
ited by  statute.  This  is  in  fact  the  case  in  various  muni- 
cipalities in  this  State,  —  for  instance,  in  Brooklyn, 
Binghamton,  Schenectady  and  Ogdensburgh. 


Liability,  how  conferred.  75 

(a)  la  Brooklyn  id  is  provided  that  "The  city  of 
Brooklyn  shall  not  be  liable  in  damages  for  any  misfeas- 
ance or  non-feasance  of  the  common  council,  or  any 
officer  of  the  city  or  appointee  of  the  common  council,  of 
any  duty  imposed  upon  them  or  any  or  either  of  them, 
by  the  provisions  of  this  act,  or  of  any  other  duty  enjoined 
upon  them  or  any  or  either  of  them,  as  officers  of  govern- 
ment, by  any  provision  of  this  act ;  but  the  remedy  .  . 
shall  be  .  .  .  against  the  members  of  the  common 
council,  officer  or  appointee     .     .     .     if  at  all." 


Session  Laws  of  1873,  p.  1378,  \  27. 

The  constitutionality  of  this  act  was  attacked  in  Gray 
v.  Brooklyn,  50  Barb.  365 ;  2  Abb.  Dec.  267,  upon  the 
ground  that  it  impaired  the  obligation  of  a  contract.  It 
was  declared  constitutional  upon  the  ground  that  *tli3 
acceptance  of  its  original  charter  (Laws  1854,  p.  860,  §  1), 
in  which  the  power  over  highways  was  vested  in  the  com- 
mon council,  was  not  a  contract  with  the  person  injured, 
but  between  the  city  and  the  State,  by  whose  sovereign 
act  the  charter  had  been  conferred. 

In  that  case,  the  court  went  so  far  as  to  hold  that 
"  The  object  of  the  legislature  is  clear,  and  that  was  to 
exonerate  the  city  from  liability  on  account  of  the  omis- 
sion and  misconduct  of  its  officers,  and  to  impose  all  the 
legal  consequences  of  their  acts  directly  upon  the  per- 
sons who  might  be  guilty  of  such  official  misconduct." 

The  full  force  put  upon  this  statute  in  Gray  v.  Brook- 
lyn has  been  somewhat  modified  in  later   cases.     Such 

are: 

Fitzpatrick  v.  Slocum,  89  N.  Y.  358. 
Hardy  r.  Brooklyn,  90  N.  Y.  436. 
Vincent  v.  Brooklyn,  31  Hun,  122. 


76  Law. 

In  Fitzpatrick  v.  Slocum  the  court  say : 

"  There  must  be  a  remedy  where  one  is  injured  with- 
out fault  of  his  own  by  a  defect  in  one  of  the  streets  or 
bridges  of  the  city,  either  against  the  city  or  some  one  of 
its  officers.  The  primary  duty  to  keep  its  streets  and 
bridges  in  safe  condition  rests  upon  the  city,  and  there 
is  a  general  obligation  upon  it  to  use  proper  care  and 
vigilance  in  putting  and  keeping  its  streets  and  bridges 
in  safe  condition,  and  unless  that  duty  has  been  plainly 
devolved  upon  some  officer  or  officers  of  the  city  against 
whom  a  remedy  for  non-feasance  can  be  had,  the  remedy 
is  against  the  city  upon  its  obligation.  That  section  does 
not  exempt  the  city  from  liability  to  discharge  a  duty  resting 
upon  it,  and  which  it  has  not  devolved  upon  any  one  of  its 
officer ■«." 

(b)  The   Binghamton   charter  differs    from    that    of 

Brooklyn,  in   this  respect   only,  in   that   in  Binghamton 

there  is  no  liability  of  the  officer,  except  in  case  of  gross 

negligence. 

Session  Laws  of  1867,  p.  651,  \  6. 

Under  this  it  was  held,  in  Fitzgerald  v.  Binghamton, 
40  Hun,  332,  that  the  reasoning  of  Fitzpatrick  v.  Slocum 
applied  there  with  still  greater  force,  since  gross  negli- 
gence of  the  officer  did  not  appear,  and  hence  there  could 
be  no  remedy  but  against  the  city ;  and  the  three  later 
Brooklyn  cases  were  followed. 

(c)  The  Ogdensburgh  charter  makes  the  common 
council  commissioners  of  highways,  but  relieves  the  city 
from  liability  to  a  person  injured  "  by  any  defect  in  the 
plan  upon  or  in  the  manner  in  which  any  sidewalk  in 


Liability,  how  conferred.  77 

said  city  shall  be  constructed,  or  by  reason  of  the  same 

not  being  in  repair,  or  by  slipping  upon  any  snow  or  ice 

thereon." 

Session  Laws  of  1881,  cb.  95,  p.  112. 

Under  this  it  was  hold  in  Piercy  v.  Averill,  37  Hun, 
3G0,  that  the  members  of  the  common  council  may  be 
liable  to  the  person  injured. 

(d)  The  Schenectady  charter  declares  that  the  city 
shall  not  be  liable  for  injuries  sustained  by  defective 
sidewalks,  unless  actual  notice  of  the  defect  shall  have 
been  given  to  the  common  council  or  superintendent  of 
streets  at  least  twenty -four  hours  previous  to  the  injury. 
It  also  provides  that  claims  must  be  presented  within 
three  months ;  and  actions  brought  within  a  year. 

Laws  of  1882,  p.  359,  ch.  294,  §  4. 
This  act  was  declared  constitutional  in 

Van  Vranken  v.  Schenectady,  31  Hun,  516. 
following  Gray  v.  Brooklyn,  supra. 

5.  Liability  based  on  agreement.  The  theory  upon  which 
the  liability  of  a  municipality  to  the  person  injured  is  a  lid 
based  is  that  of  an  agreement  or  contract,  express  or  implied, 
between  the  sovereign  power  and  the  corporation,  by  which  the 
former  confers  valuable  franchises  a  ii<  1  powers,  and  the  bit',  r 
becomes  bound  to  certain  corresponding  duties. 

Cain  r.  Syracuse,  29  Hun,  105. 
Ensign  r.  Livingston  Co.,  25  Hun,  20. 
Weet  r.  Brockport,  1G  N.  Y.  161,  note. 
Maxmilian  v.  New  York,  62  N.Y.  160. 


78  Law. 


Buffalo  v.  Yattan,  1  Buff.  Super.  Ct.  485. 
Aldrich  v.  Tripp,  11  R.  I.  14. 
Omaha  v.  Olmstead,  5  Neb.  446. 


In  Ensign  v.  Livingston  Co.  Supervisors  tile  court  say  : 

"  The  surrender  by  the  government  of  a  portion  of  its 
sovereign  power  to  the  municipality,  if  accepted  by  the 
latter,  has  been  regarded  as  affording  a  consideration  for 
an  implied  agreement,  on  the  part  of  the  corporation,  to 
perform  the  duties  imposed  by  the  charter,  a  neglect  of 
which  will  render  the  corporation  liable  .  .  .  to  a  pri- 
vate action  at  the  suit  of  a  person  injured  by  such 
neglect." 

In  Weet  v.  Brockport : 

"Whenever  an  individual  or  a  corporation,  for  a  con- 
sideration received  from  the  sovereign  power,  has  become 
bound  by  covenant  or  agreement,  express  or  implied,  to 
do  certain  things,  such  individual  or  corporation  is  liable, 
in  case  of  neglect  to  perform  such  covenant,  to  the  per- 
son injured." 

In  Maxmilian  v.  New  York  : 

"  The  duty  of  keeping  in  repair  streets,  bridges  and 
other  common  ways  of  passage,  and  a  liability  for  a 
neglect  to  perform  that  duty,  rest  upon  an  express  or  im- 
plied acceptance  of  the  power  and  an  agreement  to  do  so. 
It  is  a  duty  with  which  the  city  is  charged  for  its  own 
corporate  benefit,  to  be  performed  by  its  own  agents,  as 
its  own  corporate  act." 


Liability,  how  conferred.  79 

6.  Power  implies  duty.  In  New  York  the  principle  has 
been  long  recognized  that  : 

"  Where  a  public  body  or  officer  is  clothed  with  power  to 
do  an  act  which  concerns  the  public  interest  or  the  rights  of 
third  persons,  the  execution  of  the  power  may  be  insisted  on 
as  a  duty,  though  the  statute  creating  it  be  only  permissive  in 
its  terms." 

This  is  illustrated  in  the  following,  among  many  cases. 

New  York  v.  Furze,  3  Hill,  612. 
Hines  v.  Lock  port,  60  Barb.  378. 
Hutson  v.  New  York,  9  N.  Y.  163. 
Kekberg  v.  New  York,  91  N.  Y.  137. 
Nebraska  City  v.  Campbell.  2  Black,  590. 


7.  Theory  of  agency.  The  liability  of  a  municipal  cor- 
poration/or the  negligent  performance  of  a  duty  imposed  upon 
its  trustees  or  common  council,  is  based  upon  the  doctrine  that 
such  officers  are,  in  their  capacity  as  commissioners  of  high- 
ways, to  be  regarded  as  agents  of  the  corpoi'ation. 

Conrad  v.  Ithaca,  16  N.  Y.  158. 
Hyatt  v.  Kondout,  44  Barb.  385. 
Todd  r.  Troy,  61  N.  Y.  506. 
Weed  v.  Ballston,  76  N.  Y.  329. 
Sewell  v.  Cohoes,  75  N.  Y.  45. 

And  other  cases  cited  under  (1)  supra. 

8.  Liability  dependent  on  funds.     The  absence  of  the  m 
sary  funds,  and  of  the  legal  mains  of  procuring  them,  will  excuse 


80  Law. 

the  non-performance  of  the  duty  of  a  municipal  corporation  to 
keep  its  streets  safe  for  travel. 

Hines  v.  Lockport,  50  N.  Y.  236. 
Peach  v.  Utica,  10  Hun,  477. 
Albrittin  v.  Huntsville,  60  Ala.  486. 
Delger  v.  St.  Paul,  14  Fed.  Eep.  567. 
Shartle  v.  Minneapolis,  17  Minn.  308. 

But  absence  of  funds  alone  will  not  excuse,  provided 
the  city  has  power  to  raise  funds. 

Peach  v.  Utica,  supra. 
La  Duke  v.  Fultonville,  20  W.  Dig.  453. 
Pomfrey  v.  Saratoga,  31  Hun,  607. 
Ellis  v.  Lowville,  7  Lans.  434. 

The  same  rule  and  exception  applied  with  respect  to 

the  liability  of  highway  commissioners  under  the  old  law 

in  New  York,  ([)    and  that  of  towns  under  the  act    of 

1881.(2) 

(')  Adsit  v.  Brady,  4  Hill,  630. 

Hover  v.  Barkhoof,  44  N.  Y.  113. 

Warren  v.  Clement,  24  Huu,  472. 

Smith  v.  Wright,  24  Barb.  170. 

Garlinghouse  v.  Jacobs,  29  N.  Y.  297. 
(2)  Eveleigh  v.  Hounsfield,  34  Hun,  140. 

Monk  v.  New  Utrecht,  104  N.  Y.  552. 

(a)  Burden  of  proof .  In  Eveleigh  v.  Hounsfield,  supra, 
it  was  held  that  the  burden  of  alleging  and  proving  funds 
in  a  town  is  upon  the  person  seeking  to  recover  against 
the  town. 

The  three  cases  cited  as  sustaining  that  doctrine  are 
People  v.  Adsit,  2  Hill,  619,  and  Garlinghouse  v.  Jacobs, 
and  Warren  v.  Clement,  supra. 

Upon  examination  it  would  seem  that  this  position  is 
sustained  by  only  the  first  of  those  cases,  in  which  the 


Liability,  how  conferred.  81 

question  arose  upon  the  sufficiency  of  an  indictment,  and  it 
was  thus  distinguished  in  Adsit  v.  Brady,  infra. 

In  the  following  cases  it  was  held  that  the  burden  of 
proving  lack  of  funds  was  upon  the  defendant. 

Adsit  v.  Brady,  4  Hill,  630. 

Ellis  v.  Lowville,  7  Lans.  434. 

Weed  v.  Ballston,  7G  N.  Y.  at  p.  335. 

Hines  r.  Lockport,  50  N.  Y.  236. 

Day  v.  Crossman,  1  Hun,  570. 

Hover  v.  Barkhoof,  44  N.  Y.  113,  at  p.  118. 

Pomfrey  v.  Saratoga,  34  Hun,  607. 

For  the    purpose  of  showing   funds,  it  is  proper  to 
prove  the  making   of  repairs  the  day  after  the  accident. 

Morrell  v.  Peck,  88  N.  Y.  398. 

6 


CHAPTER  VIII. 

PUBLIC  AND  CORPORATE  FCJNCTIONS. 

1.  Dual  powers. 

2.  Care  of  streets  a  corporate  duty. 

3.  Discretionary  acts. 

4.  Negligent  plan. 

5.  Ministerial  acts. 

6.  Care  of  excavations,  &c! 

7.  Quasi  corporations. 

1.  Dual  powers.  A  municipal  corporation  possesses  two 
hinds  of  functions  ;  one  governmental  and  political  in  their 
character,  and  solely  for  the  public  benefit  and  protection,  the 
other  private,  exercising  as  a  corporation,  private  franchise 
powers  and  privileges,  which  belong  to  it  for  its  immediate 
corporate  benefit.  While  in  the  exercise  of  the  former  the  cor- 
poration is  a  municipal  government,  and  while  in  the  exercise 
of  the  latter  is  a  corporate,  legal  individual. 

Lloyd  v.  New  York,  5  N.  Y.  369. 

Wilson  v.  New  York,  1  Denio,  595. 

Bailey  v.  New  York,  3  Hill,  531. 

Rochester  White  Lead  Company  v.  Rochester,  3 

N.  Y.  463. 
Maxmilian  v.  New  York,  62  N.  Y.  160. 
Welsh  v.  Rutland,  67  Vt.  228. 
Hill  v.  Boston,  122  Mass.  344. 
Eastman  v.  Meredith,  36  N.  H.  284. 
Mills  v.  Brooklyn,  32  N.  Y.  489. 
[82] 


Public  and  Corporate  Functions.  83 

Radcliffs  Ex're  v.  New  York.  4  N.  Y.  195. 
Hines  r.  Lockport.  50  N.  Y.  236. 
Little  Rock  v.  Willis,  27  Ark,  572. 
Elgin  v.  Kimball,  90  HI.  356. 
(See  also  many  cases  cited  in  briefs  in  Clemence  v. 
Auburn,  66  N.  Y.  334.) 


In  the  exercise  of  the  former  kind  it  is  said  that  a 
corporation  acts  in  a  judicial  or  semi-judicial  capacity, 
under  the  latter  in  an  administrative  ;  that  it  is  not 
responsible  to  a  person  injured  by  its  manner  of  exercis- 
ing the  former,  but  of  the  latter  it  is. 

The  principle  in  both  its  branches  is  excellently 
stated,  with  citations  of  authorities,  in  the  opinion  in 
Hines  v.  Lockport,  50  N.  Y.  at  p.  238  : 

"Where  power  is  conferred  on  public  officers,  or  a 
municipal  corporation,  to  make  improvements, — such  as 
streets,  sewers,  Ac,  and  keep  them  in  repair, — the  duty 
to  make  them  is  quasi-judicial  or  discretionary,  involving 
a  determination  as  to  their  necessity,  requisite  capacity, 
location,  &c,  and  for  a  failure  to  exercise  this  power,  or 
an  erroneous  estimate  of  the  public  needs,  no  civil  action 
is  maintainable.  But  when  this  discretion  has  been  ex- 
ercised, and  the  street,  sewer,  or  other  improvement  has 
been  made,  the  duty  to  keep  it  in  repair,  so  as  to  pre- 
vent it  from  being  dangerous  to  the  public,  is  ministe- 
rial, and  for  a  negligent  omission  to  perform  this  duty,  an 
action  lies  by  the  party  injured." 

2.  Care  of  streets  a  corporate  duty.  The  duty  which  the 
city  oives  to  the  traveller  to  keep  its  streets  in  a  safe  condition 


84  Law. 

for  public   travel,   is   a  corporate   as  distinguished  from  a 
governmental  duly. 

Ehrgott  v.  New  York,  96  N.  Y.  264. 
Conrad  v.  Ithaca,  16  N.  Y.  158. 
Maxmilian  v.  New  York,  62  N.  Y.  160.' 

3.  Discretionary  acts.  It  may  be  said,  generally,  that  a 
municipal  corporation  is  not  liable  for  the  plans  adopted  by  it 
in  the  making  of  public  improvements,  (*)  or  for  the  exercise  of 
its  discretion  as  to  what  improvements  shall  be  made,  or 
for  its  municipal  regulations  generally. (2) 

(i)  Toolan  v.  Lansing,  38  Mich,  315. 

Bannagan  v.  Dist.  Col.,  2  Mackey,  285. 

Eozell  v.  Anderson,  91  Ind.  591. 
(2)  Henderson  v.  Sandefur,  11  Bush  (Ky.)550. 

Cole  v.  Medina,  27  Barb.  218. 

Thus  it  can  incur  no  liability  for  failure  to  open,  fill, 
or  grade  streets, 

Lynch  v.  New  York,  76  N.  Y.  60. 
Hughes  v.  Baltimore,  Taney,  243. 

or  to  construct  sidewalks, 

Saulsbury  v.  Ithaca,  24  Hun,  12;  94  N.  Y.  27. 

or  cross-walks, 

Williams  v.  Grand  Rapids,  (Mich.)  33  Alb,  L.  J. 

237. 
Easton  v.  Neff,  (Pa.)  29  Alb.  L.  J.  372. 

or  improve  streets  in  sparsely-settled  parts, 

Henderson  v.  Sandefur,  11  Bush  (Ky.)  550. 


Purlic  and  Corporate  Functions.  85 

or  light  streets, 

Lyon  v.  Cambridge,  186  Mass.  419. 
Freeport  v.  Isbell,  83  111.  440. 

or  appoint  inspectors  of  steam  boilers, 

Mead  v.  New  Haven.  40  Conn.  72. 
or  superintendents  of  streets, 

King  v.  Chapin,  23  W.  Dig.  528. 

or  make  ordinances, 

Bochester  White  Lead  Co.  v\  Rochester,  3  N.  Y.  463. 

or  construct  sewers. 

Kavanagh  v.  Brooklyn,  38  Barb.  232. 
Mills  v.  Brooklyn,  32  N.  Y.  489. 
Wilson  v.  New  York,  1  Denio,  595. 

It  is  not  liable  for  altering  the  grade  of  a  sidewalk, 

Kavanagh  v.  Brooklyn,  supra, 
WaddeU  v.  New  York,  8  Barb.  95. 

or  for  the  plan  of  a  sidewalk, 

Urquhart  r.  Ogdensburgh,  91  N.  Y.  67  ;  97  Id.  238. 
Watson  v.  Kingston,  26  W.  Dig.  15. 

or  of  a  sewer, 

Hardy  v.  Brooklyn,  7  Abb.  N.  C.  403. 

or  for  regulating  the  cleaning  of  sewers, 
Lloyd  v.  New  York,  5  N.  Y.  369. 


86  Law. 

or  for  blasting  rocks  for  sewers,  in  absence  of  negligence. 
Murphy  v.  Lowell,  128  Mass.  396. 

In  Urquhart  v.  Ogdensburgh,  91  N.  Y.  67,  it  was  held 
that  the  approval  of  the  plan  of  a  sidewalk  made  by  an 
individual  was  as  much  a  judicial  act  as  the  design  of  it. 

In  the  same  case,  on  a  second  appeal  (97  N.  T.  238),  it 
was  held  that  approval  cannot  be  assumed  from  failure 
to  disapprove. 

See  also  Garrett  v.  Buffalo,  26  Week.  Dig.  257. 

4.  Negligent  plan.  A  municipal  corporation  is  liable 
for  negligence  in  the  plan  of  an  improvement,  as  well  as  in 
the  manner  of  executing  the  work. 

North  Yernon  v.  Voegler,  (Ind.)  2  No.  E.  B.  82  ; 

32  Alb.  L.  J.  466. 
Ferguson  v.  Davis  County,  57  Iowa,  601. 
Gould  v.  Topeka,  32  Kan.  485. 
Bice  v.  Evansville,  (Ind.)  35  Alb.  L.  J.  138. 

A  similar  principle  seems  to  have  been  recognized  in 
Clemence  v.  Auburn,  66  N.  Y.  334,  where  a  portion  of  a 
sidewalk  had  been  built  on  a  new  grade,  and,  at  the  place 
where  the  new  part  approached  the  old,  a  stone  had  been 
placed  with  a  much  steeper  grade  than  the  rest  of  the 
walk.  This  had  been  directed  by  the  chairman  of  the 
street  committee  of  the  common  council,  and  the  court 
held  it  not  a  judicial  act,  upon  the  ground  that  there 
could  be  no  presumption  of  authority  in  the  officer. 

But  the  court  say  : 


Public  and  Corporate  Functions.  87 

"  It  is  questionable  whether,  the  absolute  duty  being 
imposed  by  law  upon  the  city  to  construct  and  keep  in 
repair  the  sidewalks,  the  city  would  not  be  liable  to  any 
one  travelling  thereon  for  injuries  resulting  from  an  im- 
proper construction  of  the  walks,  whether  in  respect  to 
grade,  material  or  other  thing ;  in  other  words,  whether, 
the  duty  being  conceded,  it  is  not  absolute  to  make  them 
reasonably  safe  for  public  travel." 

In  Hubbell  v.  Yonkers,  35  Hun,  349,  the  injury  was 
caused  by  a  frightened  horse  going  over  an  unprotected 
embankment  beside  the  street,  some  twelve  feet  high,  and 
which  had  been  there  ten  years. 

The  court,  after  citing  some  cases  to  the  effect  that  a 
city  is  not  liable  for  the  plan  of  construction  of  its  streets, 
say  : 

"  These  cases  do  not  decide  that  a  municipal  corpora- 
tion may  escape  liability  for  a  defective  construction  of 
an  improvement,  merely  because  it  is  made  in  accordance 
with  an  approved  plan.  If  a  bridge  over  a  ravine  or  a 
water  stream  was  built  by  a  city  or  a  village,  and  left 
without  a  side  guard,  or  a  street  was  constructed  on  a 
causeway  high  above  the  natural  level  of  the  ground,  and 
left  without  side  rails  or  protection,  responsibility  for 
injuries  resulting  from  their  absence  could  not  be  avoided 
by  showiug  that  they  were  made  in  accordance  with  the 
plans. 

"  Such  a  doctrine,  carried  to  its  legitimate  conclusion 
and  result,  might  release  all  municipal  corporations  from 
the  duty  imposed  on  them  to  maintain  the  streets  within 
their  limits  in  a  safe  condition  for  travel  in  the  usual 
modes." 


88  Law- 

In  North  Yernon  v.  Voegler,  the  court  say  : 

"  Suppose  that  a  common  council  of  a  city  determine 
to  build  a  sewer  and  cover  it  with  reeds,  can  it  be  pos- 
sible that  the  corporation  can  escape  liability  on  the 
ground   that   the    common   council  erred  in   devising  a 

plan? 

"  Or  suppose  the  common  council  undertake  to  con- 
duct a  large  volume  of  water  through  a  culvert  capable 
of  carrying  less  than  one-tenth  of  the  water  conducted 
to  it  by  the  drains  constructed  by  the  city,  can  re- 
sponsibility be  evaded  on  the  ground  of  an  error  of 
judgment  ? 

"Again, suppose  the  common  council  to 

devise  a  plan  for'  a  bridge,  that  will  require  tim- 
bers so  slight  as  to  give  way  beneath  the  tread  of  a 
child,  can  the  city  escape  liability  on  the  ground 
that  there  was  only  an  error  of  judgment  in  devising 
the  plan?" 


5.  Ministerial  acts.  When  the  discretionary  power  of  a 
municipal  corporation  is  put  in  exercise,  it  is  responsible  for 
the  manner  of  performance. 


Barton  v.  Syracuse,  37  Barb.  292. 

Ludlow  v.  Yonkers,  43  Barb.  493. 

Lacour  v.  N.  Y.,  3  Duer,  406. 

Bochester  White  Lead  Co.  v.  Bochester,  3  N.  Y. 

463. 
Buffalo  and  Hamburgh  Turnpike  Co.  v.  Buffalo, 

1  T.  &  C.  537. 
Piercy  v.  Averill,  37  Hun,  360. 
Nims  v.  Troy,  59  N.  Y.  500. 


Public  and  Corporate  Functions.  89 

McCarthy  v.  Syracuse,  40  N.  Y.  194. 
Hubbell  v.  Yonkers,  35  Hun,  319. 
McDonough  r ,  Virginia  City,  G  Nev.  90. 
Hines  v.  Lockport,  50  N.  Y.  230. 

6.  Care  of  excavations,  etc.  Important  illustrations  of 
the  above  rule  ocour  in  case  of  excavations,  &c,  made  or 
permitted  in  the  streets.  As  has  been  commented  on 
before,  it  is  necessary  that  the  obstructing  of  the  street 
for  building  purposes  and  the  excavating  it  for  various 
purposes,  partly  by  the  city  itself,  partly  by  its  licensees, 
should  be  done.  The  fact  of  obstructing  in  the  one  case, 
in  the  other  of  permitting,  is  not  in  itself  necessarily 
wrongful ;  but  under  such  circumstances  the  city  is 
"  bound  to  protect  all  prudent  persons  against  accident." 

Covington  v.  Bryant,  7  Bush  (Ky.)  248. 

See  also  Lacour  v.  New  York,  3  Duer,  400. 

Storrs  v.  Utica,  17  N.  Y.  104. 

Brusso  v.  Buflalo,  90  N.  Y.  079. 

Grant  r.  Brooklyn,  41  Barb.  381. 

Platz  v.  Cohoes,  89  N.  Y.  219. 

Osborn  v.  Union  Ferry  Co.,  53  Barb.  029. 

Port  Jervis  v.  First  Nat.  Bk.,  90  N.  Y.  550. 

Groves  v.  Kochester,  39  Hun,  5. 

McMahon  v.  Second  Ave.  K.  E.  Co.,  75  N.  Y.  231. 

Seneca  Falls  v.  Zalinski,  8  Hun,  571. 

Lemont  v.  Eood,  18  Bradw.  (111.  Ap.)  245. 

7.    Quasi-corporations.     The  distinction  is  tabu  tin  it  it  is 
the  governmental  power  alone  that  is  possessed  by  count* 
towns,  iohich,   like   assembly   and  senatorial   districts,   school 
districts,  &c,  are  men!;/  political  divisions  organized  for  the 
convenient  exercise  of  the  political  power  of  the  State. 

Ensign  r.  Livingston  Co.,  25  Hun,  20. 

People  ex  reL  Loomis  r.  Little  Valley,  75  N.  Y.  310. 

Morey  v.  Newfane,  8  Barb.  015. 


90  Law. 

And  in  California  the  same  is  true  of  cities. 

Winbigler  v.  Los  Angeles,  45  Cal.  36. 
Tranter  v.  Sacramento,  61  Cal.  271. 

These  are  often  called  quasi  corporations. 

Barnes  v.  District  of  Columbia,  91  U.  S.  540. 
Donalson  v.  San  Miguel  Co.,  1  New  Mex.  263. 

"While  a  liability  is  under  many  jurisdictions  imposed 
upon  these  quasi  corporations  with  regard  to  repair  of 
streets,  it  is  always  expressly  prescribed  by  statute, 
under  the  sovereign  power  of  the  State.  The  element  of 
liability  to  be  implied  from  a  power,  under  an  agreement, 
upon  a  consideration,  is  wanting. 

Illustrative  of  the  liability  thus  imposed  by  statute 
upon  political  divisions  may  be  mentioned  several  of  the 
New  England  and  other  States,  in  which  the  care  of  roads 
and  bridges  is  vested  in  the  several  towns,  and  a  cause  of 
action  is  expressly  given  by  statute  against  a  town  for 
neglect  of  repair.  But  the  courts  in  those  States  hold 
that  no  action  lies  except  by  force  of  the  statute  giving  it. 

Bigelow  v.  Randolph,  14  Gray,  541. 

Chidsey  v.  Canton,  17  Conn.  475. 

Beed  v.  Belfast,  20  Maine,  246. 

Eastman  v.  Meredith,  36  N.  H.  284. 

Frazer  v.  Lewiston,  76  Me.  531. 

Altnow  v.  Sibley,  30  Minn.  186. 

Yeager  v.  Tippecanoe,  81  Ind.  46.  •   . 

It  follows  that  in  absence  of  such  a  statute  there  is  no 
liability  to  the  person  injured. 

Ensign  v.  Livingston  Co.,  25  Hun,  20. 
White  v.  Chowan  Co.  Comrs.,  90  N.  C.  437. 
Clark  v.  Adair  Co.,  79  Mo.  536. 


Public  and  Corporate  Function-.  91 

In  New  York,  prior  to  18  A,  the  only  remedy  of  per- 
sons injured  upon  town  highways  w;is  against  the  com- 
missioners of  highways. 

By  Session  Laws  of  1881,  ch.  700,  this  liability  in  the 
first  instance  was  transferred  to  the  town,  with  right  of 
recovery  over  against  the  commissioners  in  case  the 
injury  is  caused  by  their  negligence. 

This  act  was  held  constitutional  in 

Bidwell  v.  Murray,  40  Hun,  190. 

But  that  it  is  not  retroactive  in  its  effect,  in 
Frasier  v.  Tompkins,  30  Hun,  168. 


CHAPTER  IX. 

FOB  WHOSE  ACTS  LIABLE. 

A.  Agents  and  Servants. 

1.  In  general. 

2.  Ultra  vires. 

B.  Independent  Officeks  and  Departments. 

1.  When  city  not  liable. 

2.  When  city  liable. 

3.  Respondeat  superior. 

C.  Independent  Contkactoes. 

1.  Work  not  dangerous. 

2.  Same.     Supervision  of  officer. 

3.  Work  dangerous. 

4.  Bules  subject  to  liability  for  care  of  streets. 

D.  Licensees. 

1.  License  lawful. 

2.  License  unlawful,  but  injury  by  mode  of  exercise. 

3.  License  for  dangerous  thing. 

4.  Subject  to  duty  over  streets. 

E.  Otheb  Persons. 

1.  Depends  on  notice. 

2.  Acceptance  by  city. 

A.  Agents  and  Servants. 

1.  In  general.  That  a  municipal  corporation  is  liable 
to  the  individual  injured  by  the  act  or  neglect  of  its  ser- 
vants or  agents  is  but  saying  that  it  is  responsible  for  its 
own  act  or  neglect,  since  it  can  act  only  through  them. 

[92] 


For  whose  Acts  liable.  93 

The*,  acts  of  agents  which  bind  the  corporation  are  not, 
however,  without  limitation  ;  and  questions  often  arise  as 
to  the  persons  for  whose  acts  the  city  is  liable  under  the 
dDctrine  of  respondeat  superior. 


2.  Ultra  vires.  A  municipal  corporation  is  not  liable  to 
an  individual  whose  injury  is  the  result  of  illegal  acts  of  its 
agents  or  officers. 


Boom  v.  Utica,  2  Barb.  104. 
Albany  v.  Cunliff,  2  N.  Y.  165. 
Herrington  v.  Corning  51  Barb.  396. 
Smith  v.  Rochester,  76  N.  Y.  506. 
Davies  v.  New  York,  4  Civ.  Pro.  290. 


In  Boom  v.  Utica,  the  common  council,  assuming  a 
power  to  do  so  from  the  charter  provisions  for  the 
removal  of  nuisances,  ordered  the  placing  of  certain 
persons,  sick  with  a  contagious  disease,  in  a  building 
owned  by  the  plaintiff,  without  his  consent.  Held, 
ultra  vires,  and  that  no  recovery  could  be  had  against 
the  city. 

In  Albany  v.  Cunliff,  the  officer  and  agents  of  a  city 
assumed  to  build  a  bridge  by  authority  of  an  unconstitu- 
tional statute.  The  bridge  fell  by  reason  of  its  negligent 
construction.  Held,  that  a  person  injured  had  no  remedy 
against  the  city. 

In  Herrington  v.  Corning,  the  injury  was  caused  by  the 
decayed  condition  of  a  sidewalk,  which  the  village  trus- 


94  Law. 

tees  had   constructed  contrary  to  the  provision  of  the 
statute  of  incorporation. 


B.    Independent  Officees  and  Departments. 

1.  When  city  not  liable.  A  municipal  corporation  is  not 
liable  for  the  wrongful  or  negligent  acts  of  public  officers  or 
departments  {or  their  employees),  whose  duties  are  prescribed 
by  the  State,  icho  are  not  under  the  supervision  of  the  cor- 
poration, and  whose  duties  do  not  enure  to  the  corporate  benefit ; 
though  they  be  appointed  by  the  corporation.     Thus  held  of 

Fire  department. 

Burrill  v.  Augusta,  (Me.)  4  Eastern  Reporter, 

615. 
Wild  v.  Paterson,  (N.  J.)  2   Eastern   Reporter, 

808. 
Woolbridge  v.  New  York,  49  How.  Pr.  67. 
Robinson  v.  Evansville,  87  Ind.  334. 
McKenna  v.  St.  "Louis,  6  Mo.  Ap.  320. 

Member  or  employee  of  fire  department. 

Smith  v.  Rochester,  76  N.  Y.  506. 

Wilcox  v.  Chicago,  107  111.  334 ;  29  Alb.  L.  J. 

37. 
Freeman  v.  Philadelphia,  13  Phila.  154. 
Welsh  v.  Rutland,  56  Vt.  228  ;  30  Alb.  L.  J. 

163. 
Edgerly  v.  Concord,  59  N.  H.  78,  341. 

Police  department. 

Sinclair  v.  Baltimore,  59  Md.  592. 


For  whose  Acts  liable.  95 

Policeman. 

McKay  v.  Buffalo,  9  Hun,  401  ;  74  N.  Y.  619. 

Citing  Stewart  v.  New  Orleans,  9  La.  An. 
461. 

Buttrick  v.  Lowell,  1  Allen,  172. 

Dargan  v.  Mobile,  31  Ala.  469. 
Kunz  v .  Troy,  30  Hun,  G15,  distinguishing  Reh- 

berg  v.  New  York,  91  N.  Y.  137. 

Department  of  public  instruction. 

Ham  v.  New  York,  70  N.  Y.  459. 

Board  of  health. 

Bamber  v.  Rochester,  26  Hun,  587. 

Board  of  revision  and  correction  of  assessments. 
Tone  v.  New  York,  70  N.  Y.  157. 

Department  of  buildings. 

Connors  v.  New  York,  11  Hun,  439. 

Department  of  docks. 

Bigler  v.  New  York,  5  Abb.  N.  C.  51. 

Commissioners  of  charities  and  correction. 

Maxmilian  i\  New  York,  62  N.  Y.  160. 
(Principal  case.) 

Servant  of  board  of  public  works. 

Condict  v.  Jersey  City,  46  N.  J.  L.  157. 


96  Law- 

Commissioners  to  build  docks  in  canal. 

New  York  v.  Lumber  Co.,  71  N.  Y.  580. 

Mayor  of  city. 

Cumberland  v.  Willison,  50  Md.  138. 

Trustees  of  village. 

Martin  v.  New  York,  1  Hill,  545. 

Fire  insurance  patrol. 

Boyd  v.  Insurance  Patrol  of  Philadelphia,  35  Alb. 
L.  J.  218. 

2.  When  city  liable,  (a)  But  is  liable  when  it  has  the 
appointment  and  supervision,  and  zohen  the  duty  to  be 
performed  is  for  the  benefit  of  the  corporation. 

Engineers  and  water  commissioners. 

New  York  v.  Bailey,  2  Denio,  433. 

Board  of  health. 

Tormey  v.  New  York,  12  Hun,  542. 

Trustees  of  Brooklyn  bridge. 

Walsh  v.  New  York,  41  Hun,  299. 

(b)  And  where  the  duty  is  imposed  on  the  corporation,  and 
the  officers  or  departments  are  simply  made  by  charter  agents 
of  the  corporation. 

Martin  v.  New  York,  supra. 
Polley  v.  Buffalo,  20  W.  Dig.  163. 


For  whose  Acts  liable.  97 

Commissioners  of  public  works. 

Niven  v.  Rochester,  76  N.  Y.  619. 

Board  of  public  works. 

Barnes  v.  District  of  Columbia,  91  U.  S.  540. 

Park  Commissioners. 

Ekrgott  v.  New  York,  96  N.  Y.  264. 

Commissioners  of  water-works. 

Deyoe  v.  Saratoga,  3  T.  &  C.  504. 

Executive  board. 

Groves  v.  Rochester,  39  Hun,  5. 

Water  board. 

Pettengill  v.  Yonkers,  25  W.  Dig.  45. 

3.  Respondeat  superior.  This  non-liability  for  acts  of 
independent  officers  and  departments  is  based  on  the  doc- 
trine of  respondeat  superior,  which  presupposes  a  power  to 
control  and  direct  the  persons  at  fault.  Liability,  where  it 
exists,  "  is  based  upon  the  right  which  the  employer  has 
to  select  his  servants,  to  discharge  them  if  not  competent, 
or  skillful,  or  well-behaved,  and  to  direct  and  con- 
trol them  while  in  his  employ  (Kelly  v.  New  York, 
11  N.  Y.  432).  The  rule  has  no  application  to  a  case  in 
which  this  power  does  not  exist  (Blake  v.  Ferris,  5  N.  Y. 
48)." 

Maxmilian  r.  New  York.  62  N.  Y.  160.  at  p.  163. 


98  Law. 


C.    Independent  Contractors. 

1.  Work  not  dangerous.  It  is  a  well  established  general 
rule,  that  where  work  not  of  itself  dangerous  is  being 
done  under  contract,  if  there  is  any  negligence,  it  is  that 
of  the  contractors  or  persons  under  them,  and  they  are 
alone  responsible. 

"  Where  the  obstruction  or  defect  caused  or  created  in  tlie 
street  is  purely  collateral  to  the  loork  contracted  to  be  done,  and 
is  entirely  the  result  of  the  wrongful  acts  of  the  the  contractor 
or  his  ivorkmen,  tlie  rule  is  that  the  employer  is  not  liable." 

Water  Company  v.  Ware,  16  Wall.  566,  at  p.  576. 

Dressell  v.  Kingston,  32  Hun,  526,  at  p.  535. 

Blake  v.  Ferris,  5  N.  Y.  48. 

Pack  v.  New  York,  8  N.  Y.  222, 

Kelly  v.  New  York,  11  N,  Y.  432. 

Buffalo  v.  Holloway,  Seld.  Notes,  25. 

King  v.  N.  Y.  C.  &  H.  E.  E.  Co.,  66  N.  Y.  181. 

McCafferty   v.  Spuyten  Duyvil,  &c.  E.  E.  Co.,  61 

N.  Y.  178. 
Pierrepont  v.  Loveless,  72  N.  Y.  211. 
Martin  v  Tribune  Asn.,  30  Hun.  391. 
Gourdier  v.  Cormack,  2  E.  D.  Smith,  254. 
Gardner  v.  Bennett,  38  Super.  197. 
Burmeister  v.  N.  Y.  El.  E.  E.  Co.  47  Super.  264. 
East  St.  Louis  v.  Giblin,  3  El.  Ap.  219. 
Herrington  v.  Lansingburgh,  36  Hun,  598. 

In  Blake  v.  Ferris,  the  defendants  were  licensees  to 
-construct  a  sewer  in  a  street,  who  contracted  with  another 
person  to  do  the  work,  and  the  injury  happened  through 
the  negligence  of  the  latter  in  leaving  the  excavation 
open  and  unguarded.  It  was  held  as  above  ;  also,  that  a 
stipulation  for  guarding  contained  in  the  license  did  not 
enure  to  the  benefit  of  the  person  injured,  as  against  the 
licensee. 


For  whose  Acts  liable.  99 

In  Pack  v.  New  York,  the  city  was  held  not  liable  for 
the  negligence  of  a  sub-contractor  in  conducting  the  blast- 
ing of  rock  so  that  pieces  of  rock  struck  a  house  and 
injured  its  inmates. 

Also  held,  that  a  clause  providing  that  the  contractor 
should  conform  to  further  directions  of  the  corporation, 
referred  only  to  results,  not  to  methods,  and  did  not  change 
the  relation  so  as  to  make  the  contractor  and  his  work- 
men agents  of  the  city. 

2.  Supervision  by  officers.  The  above  rule  is  in  accord- 
ance with  the  doctrine  of  respondeat  superior.  Upon  the 
same  principle  it  is  further  held  that : 

The  rule  is  not  otherwise,  although  the  contract  provides 
that  the  ivork  should  be  done  under  the  direction  and  to  the  sat- 
isfaction of  certain  officers  of  the  corpora  I  ion,  or  other  person 
selected  for  that  purpose. 

Kelly  v.  New  York,  11  IS.  I.  432. 
Gardner  v.  Bennett,  38  Super.  197. 
Groves  v.  Eochester,  39  Hun,  5. 
Clare  v.  Nat'l  City  Bank,  40  Super.  104. 
Herrington  v.  Lansingburgh,  36  Hun,  598. 
Scbool  District  of  Erie  v.  Fuess,  (Pa.)  25  Alb.  L. 
J.  136. 

3.  Work  dangerous.  Where,  however,  the  injury  is  not 
caused  by  the  negligent  way  in  which  the  icork  is  done,  bid  is  the 
result  of  the  work  itself,  contracted  for,  however  skillfully 
performed,  then  the  principal  is  liable. 

"When  the  obstruction  or  defect  which  occasioned 
the  injury  results  directly  from  the  acts  which  the  con- 


100  Law. 

tractor  agreed  and  was  authorized  to  do,  the  person  who 
employs  the  contractor  and  authorizes  him  to  do  those 
acts,  is  equally  liable  to  the  injured  party." 

Water  Company  v.  Ware,  16  Wall.  566. 

Dressel  v.  Kingston,  32  Hun,  526. 

StoiTs  v.  Utica,  17  N.  Y.  104. 

McCafferty  v.  Spuyten  Duyvil  E.  R.  Co.,  61  N.  Y. 

178. 
Baxter  v.  Warner,  6  Hun,  585. 
Lockwood  v.  New  York,  2  Hilton,  66. 
Maxmilian  v.  New  York,  62  N.  Y.  160. 
Lacour  v.  New  York,  3  Duer,  406. 
Hawxhurst  v.  New  York,  43  Hun,  588. 
Robbins  v.  Chicago,  4  Wall.  657. 
Joliet  v.  Harwood,  86  111.  110. 
Circleville  v.  Neuding,  41  Ohio  St.  465. 
Prentiss  v.  Boston,  112  Mass.  43. 
Baltimore  v.  O'Donnell,  53  Md.  110. 
Logansport  v.  Dick,  70  Ind.  65. 

In  Storrs  v.  Utica,  and  Dressel  v.  Kingston,  the 
injury  was  caused  by  an  unprotected  excavation  left  by 
employees  of  a  contractor.  The  court  say,  in  the  former 
case,  and  quote  in  the  latter  :  "  The  performance  of  the 
work  necessarily  renders  the  street  unsafe  for  night 
travel.  This  is  a  result  which  does  not  at  all  depend  on 
the  care  or  negligence  of  the  laborers  employed  by  the 
contractor.  The  danger  arises  from  the  very  nature  of 
the  improvement;  and  if  it  can  be  averted  only  by  special 
precaution,  such  as  placing  guards  or  lighting  the  street, 
the  corporation  which  has  authorized  the  work  is  plainly 
bound  to  take  these  precautions." 

4.  Primary  duty  of  city  to  care  for  streets.  In  applying 
the  principle  of  the  non-liability  of  a  municipal  corpora- 
tion for  the  acts  of  an  independent  contractor,  there  must 


For  whose  Acts  liable.  101 

always  be  borne  in  mind  the  primary  duty  resting  upon 
such  corporations  to  care  for  their  streets. 

The  position  of  a  municipal  corporation  in  respect 
to  work  upon  its  streets  is  well  stated  in  a  Tennessee 
case  : 

"  It  is  the  duty  of  the  corporation  to  use  care  and  vigilance 
in  the  selection  of  agents,  servants  and  contractors,  in  making 

improvements,  to  retain  the  requisite  degree  of  control  and 
superintendence  over  them  in  the  performance  of  their  duty  ; 
and  to  enforce  such  measures  of  vigilance  and  care  as  ivill 
guard  against  exposure  to  injuries  of  any  kind" 

Nashville  r.  Brown,  9  Heisk.  1. 

And  in  Eh  ode  Island  : 

"  The  duty  resting  upon  a  town  or  city  to  keep  its 
highways  safe  and  convenient  for  travel  is  a  public  duty, 
and  it  has  no  power,  unle:s  authorized  by  statute,  to 
divest  itself,  either  by  contract  or  ordinance,  of  its 
capacity  to  discharge  this  duty." 

Watson  v.  Tripp,  11  R.  I.  98. 

In  accordance  with  these  principles  it  has  been  held 
in  New  York  and  other  States  that : 

"A  municipal  corporation,  owing  to  the  public  the 
duty  of  keeping  its  streets  in  a  safe  condition  for  travel, 
is  liable  to  persons  receiving  injury  from  the  neglect  to 
keep  proper  lights  and  guards  at  night  around  an  excava- 
tion which    it   has   caused   to  be   made   in   the    street, 


102  Law. 

whether  it  has  or  has  not  contracted  for  such  precautions 
with  the  persons  executing  the  work." 

Storrs  v.  mica,  17  N.  Y.  104. 

Osborn  v.  Union  Ferry  Co. ,  53  Barb.  629. 

Dressel   v.  Kingston,  32  Hun,  526. 

Buffalo  v.  Holloway,  7  N.  Y.  493. 

Welsh  v.  St.  Louis,  73  Mo.  71 ;  25  Alb.  L.  J.  137. 

Jacksonville  v.  Drew,  19  Flor.  106. 

Wilson  v.  WheeliDg,  19  W..Va.  323. 

In  the  last  case  cited,  held,  that  a  city  is  liable  in 
such  a  case,  though  it  had  no  control  over  the  workmen, 
and  had  made  a  contract  by  which  the  contractor 
assumed  all  liability  for  accidents. 

D.  Licensees. 

1.  License  lawful.  Consent  by  a  municipal  corporation,  in 
pursuance  of  lawful  authority,  to  a  citizen  to  excavate  or 
obstruct  a  public  street,  does  not  make  it  responsible  for  the 
wrongful  or  negligent  manner  in  which  its  licensee  and  his 
employees  do  the  work. 

Port  Jervis  v.  First  Nat'l  Bank,  96  N.  Y.  550. 
Masterton  v.  Mount  Vernon,  58  N.  Y.  391.. 
Dorlon  v.  Brooklyn,  46  Barb,  604. 
James'  Adm'x  v.  Harrodsburgh,  (Ky.)  35  A.  L.  J. 

386. 
Scanlon  v.  New  York,  12  Daly,  81. 

2.  Injury  by  mode  of  exercise.  So  even  if  the  granting  of 
the  license  were  unlawful,  but  the  injury  result  from  the  negli- 
gent mode  in  ivhich  the  licensee  exercised  the  privilege  granted 
to  him,   such   mode  of  exercise   being   no  part   of  the  thing 

licensed. 

Coben  v.  New  York,  33  Hun,  404. 

See  43  Hun,  345. 

In  that  case  the  license  was  to  keep  a  wagon  on  the 
street  in  front  of  a  grocery  store.     The  licensee  kept  the 


For  whose  Acts  liable.  103 

wagon  near  the  curb  with  the  thills  turned  up  and 
fastened  with  a  string.  A  passing  wagon  struck  the 
wagon  and  broke  the  string,  whereby  the  thills  fell  and 
killed  a  person  walking  on  the  sidewalk. 

3-  License  for  dangerous  thing-.  Wfu  re,  however,  the  license 
was  unlawful  and  the  injury  was  a  result  of  it,  the  licensor 
would  undoubtedly  he  liable. 

Estelle  v.  Lake  Crystal,  27  Minn.  243. 
Little  o.  Madison,  42  Wis.  643. 

In  the  former  case,  the  injury  was  caused  by  a  plat- 
form which  had  been  built  in  a  street  with  consent  of  the 
city ;  in  the  latter,  the  city  licensed  an  exhibition  of  bears 
in  the  street,  at  which  horses  were  frightened. 


4.  Subject  to  duty  as  to  streets.  The  rule  first  above  stated 
is  subject  to  the  general  liability  of  the  corporation  to  Tceep  its 
streets  safe  for  travel.  And  the  fact  of  the  permit  is  more  or 
less  evidence  of  notice  to  the  city. 

Upon  this  general  ground,  cities  have  often  been  held 
liable  for  injuries  caused  by  obstructions  or  excavations 
created  by  their  licensees. 

Davenport  r.  Ruckman,  37  N.  Y.  568. 

Wendell  r.  Troy,  4  Keyes,  261. 

Masterton  v.  Mt.  Vernon,  58  N.  Y.  391. 

Indianapolis  r.  Doherty,  71  Ind.  5. 

Russell  v.  Columbia,  74  Mo.  480. 

Cusick  v.  Norwich,  40  Conn.  375. 

Savannah  r.  Donnelly,  71  Ga.  258. 

Campbell  r.  Stillwater,  (Minn.)  31  Alb.  L.  J.  119. 

Wilson  r.  Watertown,  5  T.  &  C.  579  ;  3  Hun,  508. 

People  ex  ?•>■/.  Markey  r.  Brooklyn,  65  N.  Y.  349. 

Hirsch  r.  Lullalo,  21  W.  Dig.  312. 


104  Law. 

In  each  of  the  four  last  cases  cited,  the  injury  was 
caused  by  the  act  of  a  railroad  company,  which,  as  a  con- 
dition of  laying  tracks  in  the  street,  assumed  the  duty  of 
keeping  them  safe.  Held,  that  this  did  not  relieve  the 
city  of  its  obligation  for  care  in  keeping  the  streets  safe 
for  travel. 

In  Indianapolis  v.  Doherty,  the  court  say : 

"When  the  city  issues  a  building  permit  to  use  and 
obstruct  a  street,  it  is  the  duty  of*  the  corporate  authori- 
ties to  see  to  it  that  the  person  she  authorizes  to  use  her 
streets  shall  properly  guard  and  protect  such  obstruc- 
tion." 

And  in  Masterton  v.  Mt.  Vernon  : 

"Where  the  officers  of  a  municipal  corporation,  in 
pursuance  of  a  lawful  authority,  give  permission  to  a  lot- 
owner  to  connect  his  lot  with  a  sewer,  such  officers  are 
required  to  exercise  reasonable  care  to  prevent  injury, 
and  for  the  omission  thereof  the  corporation  is  liable." 

E.    Other  Persons. 

1.  Depends  on  notice.  Speaking  generally,  a  city  is  not 
liable  for  the  acts  of  persons  acting  ivithout  license,  except  after 
due  notice  to  charge  it  under  its  general  liability  to  keep  streets 
in  safe  condition  for  travel. 

Griffin  v.  New  York,  9  N.  Y.  456. 
McGinity  v.  New  York,  5  Duer,  674. 
Hunt  v.  New  York,  52  Super.  198. 
Lafayette  v.  Blood,  40  Ind.  62. 
Fort  Wayne  v.  Dewitt,  47  Ind.  391. 
Joliet  v.  Seward,  86  111.  402. 
Otto  v.  Wolf,  106  Pa.  St.  608. 
Warren  v.  Wright,  3  HI.  Ap.  602. 


For  whose  Acts  liable.  101 


But  with  notice,  liable. 


Aurora  v.  Bitner,  100  Ind.  396. 
Barnes  v.  Newton,  46  Iowa,  567. 
Moore  v.  Minneapolis,  19  Minn.  300. 


2.  Acceptance  by  city.  If  the  structure  made  by  an- 
other be  adopted  by  the  city,  then  the  city  becomes  liable 
exactly  as  though  it  had  been  built  by  itself. 

Johnson  v.  Milwaukee,  46  Wis.  568. 
Hill  v.  Fond  du  Lac,  56  Wis.  242. 
Hiller  v.  Sharon  Springs,  28  Hun,  344. 
Oliver  v.  Kansas  City,  69  Mo.  79. 


CHAPTER    X. 

PROXIMATE  CAUSE. 

1.  Introductory. 

2.  Two  proximate  causes. 

3.  Application  to  city -negligence  cases. 

4.  Runaway  horses. 

1.  Introductory.  It  need  hardly  be  mentioned  that  the 
negligence  or  wrongful  act,  for  injuries  arising  from 
which  an  individual  may  recover,  must  have  been  a  prox- 
imate cause  of  that  injury.  In  practice,  however,  some 
difficulty  may  present  itself  in  the  application  of  this 
rule. 

2.  Two  proximate  causes.  Where  two  or  more  proxi- 
mate causes  contribute  to  an  accident,  and  each  is  an  efficient 
cause  without  the  operation  of  which  the  accident  would  not  have 
happened,  it  may  be  attributed  to  all  or  any  of  the  causes  ; 
but  it  cannot  be  attributed  to  a  cause  unless  without  its  operation 
the  accident  would  not  have  happened. 

Ring  v.  Cohoes,  77  N.  Y.  83. 

Merritt  v.  Fitzgibbons,  29  Hun,  634. 

(Rev.  on  other  grounds,  102  N.  Y.  362.) 

Wilson  v.  Atlanta,  60  Ga.  473. 

Williams  v.  D.,  L.  &  W.  R.  R.  Co.,  39  Hun,  430. 

Taylor  v.  Yonkers,  26  W.  Dig.  376. 

3.  Application  to  city  negligence  cases.     When  two  causes 

combine  to  produce  an  injury  to  a  traveller  upon  a  highway, 
[106] 


Proximate  Cause.  107 

both  of  which  are  in  their  nature  proximate,  the  one  being  a 

culpable  defect  in  a  highway,  and  tlie  other  some  occurrence  for 
which  neither  party  is  responsible,  the  municipality  is  liable, 
provided  the  injury  would  not  have  been  sustained  but  for  such 

defect. 

Macauley  v.  New  York,  67  N.  Y.  002. 
Kennedy  v.  New  York,  73  N.  Y.  305. 
Chicago  r.  Schmidt,  29  Alb.  L.  J.  479. 
Hampson  v.  Taylor,  (R.  I.)  32  Alb.  L.  J.  415. 
Bassett  v.  St.  Joseph,  53  Mo.  290. 
Aldrich  v.  Gorham,  77  Me.  287. 
Clark  v.  Lebanon,  03  Me.  393. 
Galveston  v.  Posnainsky,  02  Tex.  118. 
Crawfordsville  v.  Smith,  79  Ind.  308. 
Lancaster  v.  Kissinger,  (Pa.)  25  Alb.  L.  J.  454. 

In  Galveston  v.  Posnainsky,  a  child  had  fallen  into  an 
excavation  in  the  street,  and  was  injured  by  broken  glass 
at  the  bottom.  Held,  that  the  excavation  was  the  proxi- 
mate cause. 

In  Chicago  v.  Schmidt,  the  plaintiff's  intestate  slipped 
into  a  hole  in  a  sidewalk,  was  thrown  upon  a  railroad 
track,  his  clothes  caught  upon  a  spike  or  nail  in  the  side- 
walk, which  held  him  until  a  train  ran  over  and  killed 
him.     City  held  liable. 

In  Hampson  v.  Taylor,  the  plaintiff  fell  into  a  gully  in 
a  street,  upon  which  sleet  had  formed,  but  so  recently 
that  no  liability  could  be  imputed  to  the  city  upon  that 
account  alone.  Held,  that  if  the  injury  would  not  have 
happened  but  for  the  gully  the  plaintiff  might  recover. 

In  Bassett  v.  St.  Joseph,  the  plaintiff,  in  trying  to  avoid 
the  threatened  kick  of  a  mule,  fell  into  a  hole. 


108  Law. 

In  Hull  v.  Kansas  City,  the  reins  caught  under  a 
horse's  tail,  causing  the  horse  to  back  and  fall  into  a 
hole  in  the  road. 

Illustrative  of  the  converse  of  the  above  rule,— that 
the  injury  can  be  attributed  to  no  cause  not  proximate, — 
is  the  case  of 

Merrill  v.  Portland,  4  Cliff.  C.  Ct.  138. 

There  a  signboard  attached  to  a  projecting  awning 
was  struck  by  a  wagon,  and  fell,  hurting  a  passer  by. 
Hald,  that  the  unsafe  structure  was  not  the  proximate 
cause  of  the  injury. 

Some  of  the  cases  cited  above  will  be  noticed  more 
fully  in  tihe  next  section. 


4.  Runaway  horses  While  it  is  true  that  a  municipal 
corporation  is  not  liable  for  damages  caused  by  runa- 
way horses. 

Ring  v.  Cohoes,  77  N.  Y.  83. 
Moss  v.  Burlington,  60  Iowa,  438. 

and  in  some  States  even  by  statute  ;  see 

Perkins  v.  Fayette,  68  Maine,  152. 
Titus  v.  North  bridge,  97  Mass.  258. 
Houfe  v.  Fulton,  29  Wis.  296. 

and  the  commissioners  of  highways  in  towns  are  not 
bound  to  make  barriers  strong  enough  to  stop  runaway 
horses, 

Lane  v.  Wheeler,  35  Hun,  606. 


Proximate  Cause.  109 

(though  a  municipality  should  so  guard  by  barriers,  a 
dangerous  place  in  a  highway,  that  even  skittish  horses 
may  be  driven  there, 

Pittstown  v.  Hart,  89  Pa.  St.  389.) 

still  it  does  not  follow  that  there  can  be  a  recovery  against 
a  city  in  no  case  where  a  horse  becomes  frightened  and 
runs  away.  On  the  contrary,  whenever  the  injury  would 
not  have  happened  but  for  the  defective  condition  of  the 
street,  there  may  be  such  recovery. 

In  Kennedy  v.  New  York,  73  N.  Y.  365,  a  horse  sud- 
denly became  unmanageable  and  backed  off  a  dock,  with 
"tvhich  it  was  the  duty  of  the  city  to  provide  a  string- 
piece,  but  that  duty  had  been  neglected.  Held,  error  to 
dismiss  the  complaint ;  that  the  absence  of  the  string- 
piece  was  the  proximate  cause. 

Macauley  v.  New  York,  67  N.  Y.  602,  was  also  a  dock 
case ;  and,  as  in  the  Kennedy  case,  a  horse  was  lost  by 
bacoming  frightened  and  backing  off.  In  this  case,  the 
dock  was  itself  defective,  there  being  a  hole  in  it  through 
which  the  horse  saw  the  water  below,  at  which  it  became 
frightened,  backed  against  the  string-piece,  which  was 
also  out  of  repair  and  decayed,  and  which  gave  way. 
Held,  that  these  defects  were  the  proximate  cause. 

In  Clark  v.  Lebanon,  63  Maine,  393,  a  well-broken  horse, 
frightened  at  the  carriage  striking  logs  in  the  highway, 
ran  away,  and,  at  a  distance  of  one  hundred  and  twenty- 
five  feet,  threw  out  the  driver,  who  was  injured.  Held, 
that  the  logs  were  the  proximate  cause. 


110  Law. 

In  Aldrich  v.  Gorham,  77  Maine,  287,  a  well-broken 
horse  shied  and  jumped  upon  a  part  of  a  bridge  not  usu- 
ally travelled,  and  defective.  Shying  held  not  to  be  the 
proximate  cause. 

In  Crawfordsville  v.  Smith,  79  Ind.  308,  held  that  a 
plaintiff,  using  due  care,  might  recover  when  his  horse 
became  frightened  and  ran  into  an  excavation  in  a  street. 


CHAPTER    XI. 

DEGREE  OF  CARE. 

1.  Bound  to  reasonable  care. 

2.  Not  insurer. 

3.  Public  works. 

4.  Individuals. 

5.  Active  vigilance. 

6.  Care  proportioned  to  danger. 

1.  Reasonable  care.  It  is  the  duty  of  a  municipal  corpora- 
tion to  keep  its  streets  in  a  reasonably  safe  condition  for  public 
use  ;  and  whether  it  does  so  or  not  is  a  question  for  the  jury. 

Hutson  v.  New  York,  9  N.  Y,  163. 
Todd  v.  Troy,  61  N.  Y.  506. 
Clemence  v.  Auburn,  66  N.  Y.  334. 
Evans  v.  Utica,  69  N.  Y.  166. 
Niven  v.  Rochester,  76  N.  Y.  619. 
Weed  v.  Ballston,  Id.  329. 
Saulsbary  v.  Ithaca,  94  N.  Y.  27. 
Dewire  v.  Bailey,  131  Mass.  169. 


2.  Not  insurer.  A  municipal  corporation  does  not  insure 
the  absolutely  safe  condition  of  its  streets.  It  is  bound  only  to 
reasonable  care  and  diligence  for  ordinary  and  reasonable  use. 


Ring  t>.  Cohoes,  77  N.  Y.  83. 
Stillwell  v.  New  York,  49  Super.  360. 
Gorham  v.  Cooperstown,  59  N.  Y.  660. 

[HI] 


112  Law. 


Battersby  v.  New  York,  7  Daly,  16. 

Muller  v.  Newburgh,  19  W.  Dig.  550.  32  Hun,  24. 

Wilson  v.  Granby,  47  Conn.  59. 

Warren  v.  Wright,  3  111.  Ap.  602. 

Gibson  v.  Johnson,  4  HI.  Ap.  288. 

Owen  v.  Chicago,  10  HI.  Ap.  465. 

Kockford  v.  Hildebrand,  61  111.  155. 

Chicago  v.  McGiven,  78  HI.  347. 

Kenyon  v .  Indianapalis,  1  Wilson  (Ind.)  129. 


In  Kenyon  v.  Indianapolis,  it  is  said  that  a  city  is 
liable  only  to  remedy  defects  that  may  be  detected  and 
remedied  by  the  use  of  ordinary  care  and  diligence. 

And  in  Stillwell  v.  New  York,  where  the  injury  was 
caused  by  falling  on  a  slippery  vault  cover,  the  court 
say  :  "  The  duty  was  to  use  ordinary  care  to  furnish  a 
reasonably  safe  place  to  step  upon.  There  was  no  proof 
that  in  the  performance  of  this  duty  the  city  could  resort 
to  any  test  but  the  appearance  presented  by  the  exterior 
of  the  cover." 

In  Chicago  v.  McGiven,  it  was  held  that  a  municipal 
corporation  is  not  bound  to  furnish  immunity,  nor  to  use 
utmost  care.  That  the  street  must  be  reasonably  safe 
for  persons  using  ordinary  care  and  discretion. 

In  Muller  v.  Newburgh,  an  icy  sidewalk  case,  the  court 
say :  "  It  is  not  practicable  for  municipal  corporations  to 
establish  an  incessant  inspection  of  their  streets ;  and 
without  that  it  is  impossible  to  guard  against  the  condi- 
tions arising  from  natural  causes.  In  our  climate  the 
streets  and  sidewalks  are  icy  and  slippery  in  winter,  and 
their  condition  is  produced  by  natural  causes  and  does 
not  depend  on  any  care  or   skill  in  their  construction  or 

reparation." 

See,  also,  Taylor  v.  Yonkers,  26  W.  Dig.  376. 


Degree  of  Care.  113 

In  Battersby  v.  New  York  :  "  To  hold  that  the  authori- 
ties must,  under  all  circumstances  and  at  all  times,  keep 
the  streets  clear  of  snow,  ice  or  mud,  would  be  unreason- 
able." 

In  Gorham  v.  Cooperstown  it  is  said  :  "  Municipal 
corporations  are  not  guarantors  for  the  absolute  safety  of 
all  persons  from  injuries  by  reason  of  defects  in  or 
obstructions  of  the  streets  or  highways  of  the  municipal- 
ity. They  are  only  liable  when  the  defects  or  obstruc- 
tions are  the  results  of  their  acts,  or  of  some  neglect  or 
omission  of  duty  by  them  or  their  servants  or  agents, 
and  individuals  in  the  use  of  streets  receive  injuries 
therefrom  without  fault  on  their  part.  Some  overt  act  of 
the  municipality  or  its  officers,  resulting  in  injury  to  third 
persons,  or  some  neglect  or  omission  of  duty  in  repairing 
defects  or  removing  obstructions,  must  be  established,  in 
order  to  charge  the  municipality  with  the  consequences 
of  any  defects  in  or  obstruction  of  thoroughfares  within 
the  corporation." 

3.  In  construction  of  public  works.  The  rule  is  similar, 
and  has  thus  been  stated  : 

A  municipal  corporation,  in  the  construction  of  it*  sewers, 
drains,  dr.,  is  bound  to  exercise  that  can'  <m<l  i<rn<l<  nee  which 
a  discreet  and  cautious  individual  would  use  if  the  loss  or  risk- 
were  to  be  his  oicn. 

Rochester  White  Lead  Co.  v.  Rochester,  3  N.Y.  463. 
New  York  v.  Bailey,  2  Denio,  433. 

4.  Individuals.     Exactly   the  scmu    rides  apply,   in    this 

8 


114  Law. 

respect,  to  an  individual  or  private  corporation  laicfully  ob- 
structing a  street,  or  charged  with  a  duty  in  respect  to  it. 

McMahon  v.  Second  Ave.  E.  K.  Co.,  75  N.  Y.  231. 

Nolan  v.  King,  97  N.  Y.  565. 

Welsh  v.  Wilson,  101  N.  Y.  254. 

Lanark  Bank  v.  Eitemiller,  14  HI.  Ap.  22. 

In  Nolan  v.  King,  a  licensee  who  had  removed  the 
sidewalk,  in  order  to  construct  a  vault,  built  a  bridge 
over  the  excavation,  which  bridge  was  necessarily  higher 
than  the  street.  It  was  held  error  on  the  part  of  the  trial 
court  to  charge  that  it  was  the  defendant's  duty  "  to  have 
the  bridge  constructed  in  such  a  manner  that  plaintiff 
would  not  be  subjected  to  any  more  personal  risk  than  if 
the  sidewalk  had  been  there  instead  of  the  bridge." 

5.  Active  vigilance.  Where  a  municipal  corporation  is 
charged  by  its  charter  ivith  the  duty  of  keeping  its  streets  in 
repair  and  in  suitable  condition  for  public  travel,  the  agents  of 
the  corporation  charged  with  that  duty  are  bound  to  exercise 
an  active  vigilance  in  the  performance  thereof 

Todd  v.  Troy,  61  N.  Y.  506. 
Atlanta  v.  Perdue,  53  Ga.  607. 
Eosenberg  v.  Des  Moines,  41  Iowa,  415. 
Chicago  v.  Hoy,  75  111.  530. 
Pomfrey  v.  Saratoga  Spr.,  104  N.  Y.  459. 

6.  Care  proportioned  to  danger.  The  degree  of  care  and 
foresight  which  it  is  necessary  to  use,  must  always  be  in 
proportion  to  the  nature  and  magnitude  of  the  injury  that 
will  be  likely  to  result  from  the  occurrence  that  is  to  be 
anticipated  and  provided  against. 

New  York  v.  Bailey,  2  Denio,  433. 


Degree  of  Care.  115 

In  accordance  with  this   principle,  it  has   been  often 

held    that    the    more  populous   the     thoroughfare    the 

greater   the   degree  of  vigilance  necessary  on  the  part  of 
the  corporation. 

Smid  v.  New  York,  49  Super.  126. 

For  this  reason  only  the  care  required  in  a  village 
may  not  be  equal  to  that  in  a  city.  There  is  no  differ- 
ence in  principle. 

Pomfrey  v.  Saratoga  Spr.,  5  N.  T.  St.  K.  802. 


CHAPTER  XII. 


NOTICE. 

1.  Fact  of  obstruction,  not  enough. 

2.  Obstruction  caused  by  city  or  agents. 

3.  License  alone  not  notice. 

4.  Need  of  notice,  generally. 

5.  Ignorance  itself  negligence. 

6.  Actual  notice  ;  to  whom  ? 

7.  Constructive  notice  sufficient. 

8.  From  what  inferred. 

9.  Length  of  time. 

10.  Latent  defects. 

11.  Duty  of  city. 

12.  Statute  fixing  length  of  notice  constitutional. 

13.  Notice  of  particular  defect. 

14.  No  presumption  of  notice  from  ownership. 

1.  Fact  of  obstruction  not  enough.  The  mere  fact  that  a 
street  is  obstructed  or  unsafe  is  not  alone  sufficient  to  charge  a 
municipal  corporation  with  negligence. 

Griffin  v.  New  York,  9  N.  Y.  456. 
McGinity  v.  New  York,  5  Duer,  674. 
Gorham  v.  Cooperstown,  59  N.  Y.  660. 
Todd  v.  Troy,  61  N.  Y.  506. 
Evans  v.  Utica,  69  N.  Y.  166. 
Stanton  v.  Springfield,  12  Allen,  566. 
Cook  v.  Milwaukee,  24  Wis.  270. 

Nor  that  an  accident  happened  there. 

Baltimore  El.  Co.  v.  Neal,  (Md.)  5  Atl.  R.  338. 
[116] 


Notice.  117 

This  princirjle  is  either  expressed  or  implied  in  most 
of  the  cases  cited  in  this  chapter. 

Some  of  the  cases  above  cited  and  many  others  arose 
from  injuries  caused  by  falls  upon  icy  sidewalks. 

Thus,  in  Todd  v.  Troy,  it  was  held  that  the  mere  fact 
of  ice  upon  a  sidewalk  upon  which  the  plaintiff  slipped 
and  fell,  did  not  establish  the  liability  of  the  city. 


2.  Obstructions  caused  by  city  or  agents.  Where,  hoivever, 
the  obstruction  is  caused  by  the  city  itself,  the  above  rule  does 
not  apply.  In  such  cases  no  notice  need  be  proven,  the  pre- 
sumption being  tJuit  every  one  has  knowledge  of  his  own  acts. 

Brusso  v.  Bufialo,  90  N.  Y.  679. 
Platz  v.  Cohoes,  89  N.  Y.  219. 
Groves  v.  Rochester,  39  Hun,  5. 
Sevestre  v.  New  York,  47  Super.  341. 
Holmes  v.  Paris,  75  Maine,  559. 
Brunswick  r.  Braxton,  70  Ga.  193. 
Alexander  r.  Mt.  Sterling,  71  111.  366. 

And  the  fact  that  the  work  was  done  through  a  con- 
tractor does  not  vary  the  rule. 

Brusso  v.  Buffalo,  supra. 

In  Brunswick  v.  Braxton,  the  obstruction  was  made 
by  an  "agent";  in  Holmes  v.  Paris,  by  a  "servant";  in 
Groves  v.  Kochester,  by  an  "  executive  board. " 

The  above  rule  applies  where  the  work  was  done  by 
private  persons,  under  the  supervision  of  the  city  author- 
ities. 

Wendell  v.  Troy,  4  Abb.  Dec.  563. 


118  Law. 

But  some  question  has  arisen  as  to  just  what  consti- 
tutes supervision. 

3.  License  not  notice.     The  fact  that  an  obstruction  is  made 

in  the  course  of  loork  done  in  pursuance  of  a  resolution  or 

ordinance  of  a  municipal  corporation,  or  by  its  licensee,  does 

not  necessarily  make  it  the  act  of  the  city,  so  as  to  make  notice 

unnecessary. 

Masterton  v.  Mount  Vernon,  58  N.  Y.  391. 
Sweet  v.  Gloversville,  12  Hun,  302. 
Dorlon  v.  Brooklyn,  46  Barb.  604. 
McDermott  v.  Kingston,  19  Hun.  198. 
Cohen  v.  New  York,  43  Hun,  345. 

In  Sweet  v.  Gloversville,  the  excavation  was  made  by 
a  contractor  with  a  person  who  by  resolution  of  the 
trustees  of  the  village  had  been  directed  to  lower  his 
sidewalk. 

In  Dorlon  v.  Brooklyn,  the  city  had  granted  a  license 
to  a  plumber  employed  by  private  persons  to  connect  a 
house  with  a  city  sewer.  The  injury  was  caused  by  the 
plumber's  negligence. 

In  McDermott  v.  Kingston,  the  excavation  was  made 
by  a  gas  company,  acting  under  a  license  granted  by 
ordinance. 

In  all  these  cases  it  was  held  that  the  city  could  not 
be  charged  without  notice  shown. 

4.  Need  of  notice,  generally.  This  brings  us  to  the 
general  rule  upon  the  subject  of  notice  : 

A  municipal  corporation  is  not  liable  for  injuries  caused  to 
individuals  by  obstructions  on  the  highway,  not  placed  there  by 


Notice.  119 

its  own  officiate  or  by  authority  of  tJie  city  government,  until 
after  actual  notice  of  their  existence,  or  until,  l»j  reason  of  the 
lapse  of  time,  it  should  have  had  knowledge,  and  therefore  actual 
notice  may  be  presumed. 


Hume  v.  New  York,  47  N.  Y.  639. 
Griffin  v.  New  York,  9  N.  Y.  456. 
McGinity  v.  New  York,  5  Duer,  674. 
Hart  v.  Brooklyn,  36  Barb.  226. 
Dorlon  o.  Brooklyn,  46  Barb.  604. 
Masterson  v.  Mt.  Vernon,  58  N.  Y.  391. 
Smith  v.  New  York.  66  N.  Y.  295. 
Weed  v.  Ballston,  76  N.  Y.  329. 
McKenna  r.  New  York,  47  Super.  541. 
Hunt  v.  New  York,  52  Id.  198. 
Rehberg  v.  New  York,  91  N.  Y.  137. 
Ehrgott  r.  Now  York,  96  N.  Y.  264. 
Herrington  v.  Phajnix,  41  Hun,  270. 
Chicago  r.  McCarthy,  75  HI.  602. 
Schweickhardt  r.  St.  Louis,  2  Mo.  Ap.  571. 
Mack  v.  Salem,  6  Oregon.  275. 


That  the  notice  may  be  either  actual  or  constructive, 
and  the  distinction  between  these  two  terms,  cannot  be 
better  stated  than  in  the  above  rule. 


5.  Ignorance  itself  negligence.     The  rule  thai  a  municipal 

corporation  must  have  notice,  has   no   application    irht  ,■>    its 

ignorance,  of  the  defect  is  the  result  of  a  '■/ear  owl  unmistakable 

omission. 

Boucher  r.  New  Haven,  40  Conn.  456. 

6.  Actual  notice ;  to  whom?  As  a  city  can  act  ouly 
through  its  agents  and  officers,  it  follows  that  notice  of 
the  condition  of  its  streets  can  be  given  only  to  them. 


120  Law. 

A  question  then  arises  as  to  who  are  to  be  regarded  as 
agents  or  officers,  by  whose  knowledge  of  an  obstruction 
a  municipal  corporation  will  be  bound. 

In  the  following  cases,  notice  to  the  officers  named 
was  held  to  bind  the  corporation. 

Mayor  or  marshal. 

Salina  v.  Trosper,  27  Kans.  544. 

Councilman. 

Logansport  v.  Justice,  74  Ind.  378. 

Superintendent  of  streets. 

Deyoe  v.  Saratoga,  3  T.  &  C.  504. 

Street  commissioner. 


Policeman. 


Childs  v.  West  Troy,  23  Hun,  68. 
Welch  v.  Portland,  (Me.)  1  East.  E.  586. 


Rehberg  v.  New  York,  91  N.  Y.  137. 
Twogood  v.  New  York,  102  N.  Y.  216. 


In  the  last  case,  evidence  was  given  that  a  patrolman 
whose  duty  it  was  to  report  violations  of  ordinances  to 
his  superior  officer  reported  snow  and  ice  not  removed 
on  the  spot  where  the  plaintiff  fell,  for  seven  successive 
days  before  the  injury.  The  trial  court  held  that  these 
reports  did  not  constitute  notice  to  the  city.  The  gen- 
eral term  affirmed,  but  the  court  of  appeals  reversed  the 
judgment. 

In  the  following  cases  it  was  held  that  the  city  was 
not  chargeable  with  notice  : 


Notice.  121 


One  alderman. 


Peach  v.  Utica,  10  Hun,  477. 
McDermott  v.  Kingston,  19  Hun,  198. 

In  the  former  case  the  court  say :  "I  am  not  prepared 
to  say  that  notice  to  the  common  council  of  a  defect  in  a 
street  or  walk  may  not  be  proved  by  showing  that  it  was 
known  to  a  considerable  number  of  aldermen." 

In  both  cases  it  was  held  that  evidence  of  notice  to 
one  alderman  was  admissible  as  a  link  in  the  chain  of 
proof,  and  should  not  be  neglected  as  wholly  incompe- 
tent. 

In  Huggins  v.  Salamanca,  25  W.  Dig.  401,  where 
several  of  the  trustees  knew  of  the  excavation  and  gave 
directions  concerning  it,  it  was  held  proper  for  the  jury 
to  determine  the  question  of  notice. 

Tiro  trustees. 

Bush  v.  Geneva,  3  T.  &  C.  409. 

Lamjjlighter,  where  the  charter  did  not  require  lamps. 
Monies  v.  Lynn,  119  Mass.  273. 

Janitor,  appointed  by  school  committee. 
Foster  v.  Boston,  127  Mass.  290. 

7.  Constructive  notice  sufficient.  That  it  is  not  necessary 
in  all  cases  to  show  actual  notice  to  a  city  or  its  agents 
of  the  defective  condition  of  its  streets,  has  already  been 
stated,  and  is  too  well  established  for  comment  to  be 
necessary.  Among  the  many  cases  holding  that  construc- 
tive notice  is  enough  are  the  following : 


122  Law. 


Walker  v.  Lockhart,  43  How.  Pr.  366. 
Weed  v.  Ballston,  76  N.  Y.  329. 
Requa  v.  Rochester,  45  N.  Y.  129. 
Diveny  v.  Elmira,  51  N.  Y.  506. 
Hume  v.  New  York,  47  N.  Y.  639. 
Pettengill  v.  Yonkers,  23  W.  Dig.  333. 
Porter  Co.  Comrs.  v.  Dombke,  94  Ind.  72. 
Dotton  v.  Albion  Com.  Council,  50  Mich.  129. 
Chicago  v.  Dalle,  115  HI.  386. 
Goodfellow  v.  New  York,  100  N.  Y.  15. 


8.  Constructive  notice,  from  what  inferred.  The  elements 
of  constructive  notice  to  a  municipal  corporation  may  be 
discovered  in  the  following  decisions. 

In  Indianapolis  v.  Murphy,  91  Ind.  382,  it  is  said  that 
such  knowledge  is  inferable  from  length  of  time,  con- 
sidered with  reference  to  the  facts  and  circumstances  of 
the  particular  case. 

In  Shook  v.  Cohoes,  23  W.  Dig.  4,  that  besides  time, 
the  elements  are  position,  character,  and  cause  of  defect. 

In  Kequa  v.  Rochester,  45  N.  Y.  129,  that  sufficient 
time  must  have  elapsed  to  render  the  defect  notorious. 

In  Chicago  v.  Fowler,  60  111.  322,  that  where  the  jury 
believe  the  defect  or  obstruction  has  been  so  long  and 
so  notorious  that  the  city  should  have  known  its  exist- 
ence and  provided  protection,  they  may  find  the  city 
liable. 

In  Dotton  v.  Albion,  50  Mich.  129,  that  notice  may  be 
presumed  from  the  existence  of  facts  with  which  ignor- 
ance would  be  incompatible  unless  failure  to  exercise 
reasonable  care  be  assumed. 


Notice.  123 

Iu  Todd  v.  Troy,  61  N.  T.  506,  the  court  say:  "By 
constructive  notice  is  meant  such  notice  as  the  law 
imputes  from  the  circumstances  of  the  case.  It  is  the 
duty  of  the  municipal  authorities  to  exercise  an  active 
vigilance  over  the  streets ;  to  see  that  they  are  kept  in  a 
reasonably  safe  condition  for  public  travel.  They  cannot 
fold  their  arms  and  shut  their  eyes,  and  say  they  have 
no  notice,  After  a  street  has  been  out  of  repair  so  that 
the  defect  has  become  known  and  notorious  to  those 
travelling  the  street,  and  there  has  been  full  opportunity 
for  the  municipality,  through  its  agents  charged  with 
that  duty,  to  learn  of  its  existence  and  repair  it,  the  law 
imputes  to  it  notice  and  charges  it  with  negligence,"  and 
cite  the  following  cases  : 

Hart  r.  Brooklyn,  36  Barb.  226. 
Clark  v.  Lockport,  49  Barb.  580. 
Conrad  v.  Ithaca,  16  N.  Y.  158. 
Requa  v.  Rochester,  suprn. 
Hyatt  v.  Rondout,  44  Barb.  385. 

In  Albrittin  v.  Huntsville,  60  Ala.  486,  it  was  held 
that  the  fact  that  a  defect  in  a  sidewalk  had  existed  long 
enough  to  be  within  the  observation  of  people  generally, 
raises  the  presumption  that  the  authorities  knew  it. 

In  Hearn  v.  Chicago,  20  Bradwell  (111.)  251,  it  is 
held  that  "  it  is  not  necessary,  in  order  to  charge  the 
city  with  implied  notice  of  a  defect  in  a  sidewalk,  that 
the  circumstances  should  be  such  as  to  charge  the  parti- 
cular person  or  persons  having  special  supervision  of  the 
sidewalks  with  such  notice.  It  is  enough  if  the  circum- 
stances raise  an  implication  of  notice  to  any  officer  or 
agent  of  the  city,  whose  duty  it  is  to  communicate  to  the 
city  or  its  proper  executive  officers  the  existence  of 
such  defect." 


124  Law. 

9.  Length  of  time  to  constitute  constructive  notice.  Question 
for  whom  ?  (a)  General  rule.  Upon  this  point  there  are 
two  lines  of  authorities.  The  general  rule  is  that  it  is 
purely  a  question  of  fact  for  the  jury. 

Chicago  v.  McCulloch,  10  111.  Ap.  459. 

Sheel  v.  Appleton,  49  Wis.  125. 

Kehberg  v.  New  York,  91  N.  Y.  137. 

Kunz  v.  Troy,  35  Alb.  L.  J.  232  ;  5  N.  Y.  St.  K. 

642. 
Heed  v.  New  York,  31  Hun,  311. 
Kinney  v.  Troy,  38  Hun,  285. 

In  Chicago  v.  McCulloch,  held  that  no  length  of 
notice  can  be  fixed  as  matter  of  law,  after  which  a  city 
will  be  bound  for  failure  to  remove  an  obstacle. 

In  Sheel  v.  Appleton,  that  it  is  purely  a  question  for 
the  jury ;  that  one  day  may  be  enough. 

In  Reed  v.  New  York,  the  court  say  that  "  reasonable 
time  "  is  for  the  jury  to  determine,  and  that  a  refusal  to 
so  charge  was  error. 

(b)  Obstruction  by  elements.  In  several  cases  where  the 
injury  has  been  caused  by  falling  upon  icy  sidewalks,  a 
non-suit  has  been  held  proper  upon  the  ground  of  insuffi- 
cient notice  to  charge  the  corporation. 

Such  cases  are : 

Muller  v.  Newburgh,  32  Hun,  24. 
Garrett  v.  Buffalo,  22  W.  Dig.  262. 
Smith  v.  Brooklyn,  36  Hun,  224. 
Heintze  v.  New  York,  50  Super.  295. 
Evers  v.  Hudson  Biver  Br.  Co. ,  18  Hun,  144. 
Blakely  v.  Troy,  18  Hun,  167. 


Notice.  125 

The  grounds  on  which  these  cases  are  decided  is 
summarized  in  two  Massachusetts  cases,  as  follows  : 

If  the  obstruction  be  produced  by  the  elements, 
liability  will  not  attach  to  the  corporation  unless  neglect 
on  his  part  is  shown,  after  knowledge  or  notice  of  the 
obstruction  and  a  reasonable  time  for  its  removal. 

Billings  v.  Worcester,  102  Mass.  329. 
Street  v.  Holyoke,  105  Mass.  82. 

In  Muller  v.  Newburgh,  the  plaintiff  fell  Sunday  even- 
ing. Snow  had  fallen  the  Thursday  before,  after  which 
it  rained  and  the  rain  had  frozen  hard.  It  was  "  a  case 
where  the  snow  first  came  down  on  the  sidewalk  and  was 
softened  by  the  rain,  and  then  the  whole  mass  was  con- 
gealed and  hardened  as  it  lay,  and  while  a  light  snow 
was  yet  falling  on  this  surface  of  ice,  the  plaintiff  slipped 
and  received  this  injury."    The  court  say; 

"  It  is  not  practicable  for  the  municipal  corporations 
of  this  State  to  establish  an  incessant  inspection  of  their 
streets,  and  without  that  it  is  impossible  to  guard  against 
the  conditions  arising  from  natural  causes.  In  our 
latitude  climatic  changes  are  frequent  and  sudden.  Ice 
and  snow  may  dissolve  into  water  during  the  day,  even 
in  winter,  and  spread  over  the  sidewalk  and  harden  to 
ice  in  the  night,  or  the  pavements  may  become  slippery 
from  moisture  or  rain,  and  both  these  causes  may  pro- 
duce accidents  and  injuries  which  no  extent  of  vigilance 
and  care  would  prevent,  and  which  the  corporation 
cannot  be  called  on  to  redress." 

In  Smith  v.  Brooklyn,  snow  fell  November  28th  and 


126  Law. 

29th,  which  subsequently  melted  and  ice  formed  there- 
from.    The  plaintiff  fell  December  4th.     The  court  say  : 

"  In  our  climate  no  reasonable  amount  of  care  can 
prevent  the  accumulation  of  ice  and  snow,  and  all  that  is 
required  from  municipal  corporations  is  reasonable  care 
and  diligence.  And  what  is  reasonable  must  be  deter- 
mined in  view  of  all  the  surrounding  conditions.  Our 
seasons  are  fluctuating,  the  inspection  of  streets  is  not 
incessant,  the  officers  and  means  provided  for  that  pur- 
pose are  limited,  and  after  the  exertion  of  all  reasonable 
diligence  defects  and  obstructions  will  exist  and  injuries 
will  result." 

In  Evers  v.  Hudson  River  Br.  Co.,  the  plaintiff  fell 
between  8  and  9  o'clock  in  the  morning  upon  ice  which 
had  formed  by  the  freezing  of  rain  which  had  fallen 
during  the  night. 

In  Blakely  v.  Troy,  ice  formed  during  the  night,  and 
plaintiff  fell  at  one  o'clock  the  next  afternoon. 

In  that  case  it  appeared,  however,  that  there  was  ice 
there  before,  and  upon  appeal  it  was  held  that  in  such 
case  the  city  might  still  be  liable. 

In  Kenney  v.  Cohoes,  16  W.  Dig.  206,  on  the  other 
hand,  it  appeared  that  rain  fell  during  the  night  and 
froze  before  morning  at  the  place  where  the  plaintiff  fell. 
There  was,  however,  a  prior  accumulation  of  ice.  It  was 
held  not  error  to  refuse  to  charge  that  if  the  walk  had 
not  been  slippery  before  the  new  ice  formed,  the  plaintiff 
could  not  recover,  since  it  might  be  inferred  that  the  rain 
washed  dirt  from  the  old  ice,  thus  rendering  it  slippery. 


Notice.  127 

In  Garrett  v.  Buffalo,  ice  formed  on  a  slanting  drive- 
way, without  negligence  of  the  city.  The  walk  was 
cleaned  the  day  before,  and  rain  fell  and  froze  in  the 
night. 

Of  this  class  of  cases  the  court  say,  in  Kinney  v.  Troy, 
38  Hun,  285  : 

"In  Muller  v.  Newburgh,  32  Hun,  24,  a  majority  of 
the  court  held  that  when  ice  formed  on  Thursday  and  the 
plaintiff  fell  and  was  injured  on  Sunday,  there  was  not 
evidence  for  the  jury  on  the  question  of  presumptive 
notice  to  the  defendant.  I  think  great  difficulty  will  be 
found,  if  the  courts  attempt  to  declare,  as  law,  what  time 
the  obstruction  must  have  existed  in  order  to  permit  the 
question  of  notice  to  go  to  the  jury." 

(c)  For  the  purpose  of  avoiding  the  difficulty  of  estab- 
lishing notice,  it  is  often  desirable  to  establish  something 
more  than  the  mere  continued  existence  of  ice. 

In  some  cases  it  has  been  made  to  appear  that  the 
accident  occurred  by  reason  of  ice  forming  upon  improp- 
erly constructed  or  uneven  sidewalks. 

Urquhart  v.  Ogdensburgh,  97  N.  Y.  238. 

Atchison  r.  King,  i)  Kan.  f>" >'■'<. 

Mauch  Chunk  v.  Kline,  100  Pa.  St.  119. 

In  others,  that  the  water  which  formed  the  ice  was 
conducted  to  the  street  or  sidewalk  by  artificial  means — 
as  hydrants,  leaders  from  roofs,  <fec. — of  the  existence  of 


128  Law. 

which,  and  of  the  tendency  to  form  ice,  the  city  had  or 
ought  to  have  had  notice. 

Mosey  v.  Troy,  61  Barb.  580. 

(S.  C.  in  court  of  appeals)  Todd  v.  Troy,  61  N.  Y. 

506. 
Dempsey  v.  New  York,  10  Daly,  417. 
Reich  v.  New  York,  12  Daly,  72. 
Darling  v.  New  York,  18  Hun,  340. 
Allison  v.  Middletown,  23  W.  Dig.  149  ;  101  N.  Y. 

667. 
Powers  v.  Chicago,  20  Bradw.  (HI.)  178. 


10.  Latent  defects.  The  law  does  not  presume  notice  to  a 
municipal  corporation  of  latent  defects. 

Scanlon  v.  New  York,  12  Daly,  81. 
Hunt  v.  New  York,  52  Super.  198. 
Hart  v.  Brooklyn,  36  Barb.  226. 
Hanscom  v.  Boston,  33  Alb.  L.  J.  355. 
Joliet  v.  Walker,  7  III.  Ap.  267. 

In  Hunt  v.  New  York,  the  injury  was  caused  by  an 
explosion  resulting  from  the  ignition  of  gas  which  had 
accumulated  and  filled  a  man-hole  constructed  and 
owned  by  a  private  corporation. 

In  Hart  v.  Brooklyn,  it  was  caused  by  the  slipping  of 
a  vault  grating  when  the  plaintiff  stepped  upon  it. 

In  Joliet  v.  Walker  the  court  say :  "A  municipal 
corporation  will  not  be  considered  to  have  notice  of  a 
defect  in.  a  sidewalk  which  was  not  such  as  to  put  a  rea- 
sonable, prudent  man,  whose  business  it  was  to  look  after 
the  repairs,  on  inquiry  to  examine  its  condition. 

11.  Duty  of  city.  The  above  rule  is,  however,  subject  to  the 
duty  of  the  city  to  use  ordinary  caution  to  anticipate  the  dan- 


Notice.  129 

ger  that  could  come  into  existence  without  manifesting  itself  to 
ordinary  observation. 

Vosper  r.  New  York,  49  Super.  296. 

Or  as  otherwise  stated  : 

"  The  duty  of  keeping  a  highway  in  order  involves 
the  duty  of  reasonable  supervision.  And  when  exercise 
of  such  supervision  would  have  led  to  the  discovery  of  a 
defect  in  season  to  repair  it,  or  protect  the  public  against 
it,  there  is  the  same  liability  as  though  there  had  been 
actual  knowledge." 

Cusick  v.  Norwich,  40  Conn.  375. 

Kunz  v.  Troy,  5  N.  Y.  St.  R.  642.  104  N.  Y.  344. 

Market  v .  St.  Louis,  56  Mo.  189. 

Weed  v.  Ballston,  76  N.  Y.  329. 

In  Vosper  v.  New  York  the  injury  was  caused  by  the 
falling  of  a  tree  standing  on  the  sidewalk,  which,  after  its 
fall,  was  found  to  be  rotten  to  a  dangerous  degree  from 
its  roots  up. 

It  was  held  that  the  duty  of  the  city  is  not  limited  to 
acting  upon  exterior  signs  of  danger,  and  that  it  was  a 
question  for  the  jury  to  determine  whether  or  not  the 
defendants  should  by  some  means  have  anticipated  the 
danger,  even  by  cutting  down  the  tree. 

The  case  of  Gubasco  v.  New  York,  12  Daly,  192,  was 
similar,  the  injury  being  caused  by  the  throwing  down, 
by  a  passing  truck,  of  a  tree  which  had  been  dead  several 
years,  and  had  a  large  hole,  but  the  evidence  of  its  rot- 
tenness was  conflicting. 

In  Indianapolis  v.  Scott,  72  Ind.  196,  it  was  held  that 
9 


130  Law. 

a  city  is  chargeable  with  knowledge  of  the  tendency  of 
timber  to  rot  by  lapse  of  time  and  exposure  to  weather. 

12.  Statute  fixing  notice  constitutional.  The  liability  of 
the  city  of  Schenectady  for  injuries  caused  by  the  danger- 
ous condition  of  its  streets,  is  by  statute  conditioned 
upon  twenty-four  hours'  notice,  previous  to  the  injury,  to 
the  common  council  or  superintendent  of  its  streets. 

Held,  constitutional  in 

Van  Vranken  v.  Schenectady,  31  Hun,  516. 

12.  Particular  defect.  In  Weisenberg  v.  Appleton,  26 
Wis.  56,  held  that  a  city  may  be  liable  for  a  sidewalk  in 
an  unsound  and  dangerous  condition,  if  the  authorities 
did  not  know  the  particular  defect  existed. 

13.  No  presumption  from  ownership.  In  Heintze  v.  "New 
York,  50  Super.  295,  held  that  the  fact  of  ownership  by 
the  city  of  premises  to  which  a  dangerous  sidewalk  is 
adjacent,  raises  no  presumption  of  notice. 

Here  may  be  noticed,  Lowhouse  v.  Buffalo,  22  W.  Dig, 
49,  that  ownership  by  the  State  of  arsenal  property 
within  a  city  does  not  excuse  the  city  from  the  duty  of 
keeping  the  street  safe  for  travellers. 


CHAPTER  XIII. 

CONTRIBUTORY  NEGLIGENCE. 

1.  General  rule, 

2.  Proximate  cause. 

3.  Degree  of  care. 

4.  Cases  :  Recovery  barred. 

5.  Presumption  of  safety. 

6.  Right  to  whole  street. 

7.  Knowledge  of  defect. 

8.  Latent  defects. 

9.  Defective  vision. 

10.  Intoxication. 

11.  Infant. 

12.  Imputed  negligence. 

13.  Imminent  danger. 

14.  Comparative  negligence. 

15.  Acts  held  to  not  bar  recovery. 

16.  Subsequent  carelessness. 

1.  General  rule.  The  principle  of  contributory  negli- 
gence is  well  stated  in  the  following  : 

An  action  for  negligence  cannot  be  sustained  if  the  wrong- 
ful act  or  negligence  of  the  plaintiff  co-operated  with  the  mis- 
conduct of  the  defendant,  to  produce  the  injury  complained  of. 

Hunger  v.  Tonawanda  R.  R.  Co.,  4  N.  Y.  349. 
Monongahela  v.  Fischer,  (Penn.)  3  East.  R.  695. 

It  is  useless  to  multiply  authorities  upon  this  well- 
known  principle.     Their  number  is  legion. 

[131] 


132  Law. 

2.  Proximate  cause.     Though  the  plaintiff  were  negligent, 

yet  if  his  negligence  did  not  contribute  to  the  injury ;  or,  in 

other  words,  if,  notwithstanding  his  negligence,  the  injury  would 

still  have  happened,  the  contributory  negligence  will  not  bar 

recovery. 

Haley  v.  Earle,  30  N.  Y.  208. 

Van  Ostran  v.  N.  Y.  C.  &c.  E.  B.  Co.,  35  Hun,  590. 
Kline  v.  C.  P.  E.  E.  Co.,  37  Cal.  400. 
Needham  v.  San  Francisco  E.  E.  Co.,  Id.  400. 
Flynn  v.  San  Francisco,  &o.  E.  E.  Co.,  40  Cal.  14. 
Eome  v.  Dodd,  58  Ga.  238. 
Centerville  v.  Woods,  57  Ind.  192. 
Pacific  E.  E.  Co.  v.  Houts,  12  Kan.  328. 
Mississippi  Cent.  E.  E.  Co.  v.  Mason,  51  Miss.  234. 
Walsh  v.  Mississippi,  &c.  Co.,  52  Mo.  434. 
Frick  v.  St.  Louis,  &c.  Ey.  Co.,  5  Mo.  Ap.  435. 
New  Jersey  Exp.  Co.  v.  Nichols,  33  N.  J.  L.  434. 
Hurst  v.  Burnside,  (Or.)  8  Pac.  E.  888. 
Gould  v.  McKenna,  86  Pa.  St.  297. 


3.  Degree  of  care.  There  is  no  contributory  negligence 
when  the  injured  party  acts  with  ordinary  prudence,  on  that 
apprehension  of  danger  which  he  is  bound  to  have  under  the 
circumstances,  and  tlwse  appearances  of  danger  which  the  situ- 
ation manifests. 

Nowell  v.  New  York,  52  Super.  382. 

That  ordinary  care  only  is  required  to  avert  the 
charge  of  contributory  negligence,  is  held  also  in 

Center  v.  Finney,  17  Barb.  94  ;  Seld.  N.  80. 
Eakin  v.  Brown,  1  E.  D.  Smith,  36. 
Lancaster  v.  Kissinger,  (Pa. )  25  Alb.  L.  J.  454. 
Dupree  v.  Cent.  Pac.  Ey.  Co.,  7  Pac.  E.  953. 
Wooley  v.  Grand  St.,  &c.  E.  E.  Co.,  83  N.  Y.  121. 

In  Center  v.  Finney  the  court  say  : 


Contributory  Negligence.  133 

"  If  ordinary  diligence  by  the  plaintiff  will  not  pre- 
vent the  injury,  he  is  not  considered  in  any  degree  the 
author  of  the  wrong." 

In  Wooley  v.  Grand  St.,  <fcc.  Co.,  the  injury  was  caused 
by  a  sleigh  being  overturned  by  a  switch  laid  on  the 
street  by  a  licensed  company.     The  court  say  : 

"  It  is  incumbent  upon  the  owner  of  the  special  fran- 
chise to  use  a  switch  put  down  in  a  manner  that  is  con- 
sonant with  the  general  rightful  use  of  the  same  public 
way.  That  general  rightful  use  is  such  use  as  men  of 
ordinary  care  and  prudence,  having  knowledge  of  the 
location  of  the  switch,  will  exercise  when  passing  over 
that  part  of  the  public  way,  at  which  the  switch  is  laid 
down.  The  citizen  is  bound  to  expect  to  meet  such  fix- 
tures in  the  use  of  his  common  right  of  travel  over  the 
street,  and  is  bound  to  use  that  care  in  approaching  and 
passing  by  or  over  it,  on  foot  or  in  vehicles,  that  men  of 
ordinary  care  and  prudence  would  put  forth  in  the  same 
locality  and  circumstances." 

In  Lancaster  v.  Kissinger  the  plaintiff,  seated  on  one 
of  a  load  of  loose  boxes  in  a  wagon,  was  thrown  off  in 
crossing  a  gutter.     The  court  say  : 

"  What  was  the  proper  measure  of  care  under  such 
circumstances?  The  same  care  that  a  man  with  a  fixed 
load  and  a  firm  seat  would  be  expected  to  take  ?  Cer- 
tainly not.  Negligence  is  the  absence  of  care  according 
to  the  circumstances.  If  a  man  is  driving  an  untamed 
horse  he  naturally  and  properly  exercises  more  care  than 
if  he  were  driving  one  entirely  gentle  :  so  of  the  road,  if 


134  Law. 

it  is  rough  and  out  of  repair  he  exercises  more  care  than 
if  well  graded  and  macadamized." 

The  converse  of  the  rule  given  at  the  head  of  this 
section  is  thus  stated  : 

"  If 'in  the  use  of  ordinary  care  and  prudence  such  as  tlve 
ordinarily  prudent  person  would  have  used  under  the  same 
circumstances,  it  [the  defect]  ought  to  have  been  discovered, 
t/ien  the  plaintiff  cannot  recover.'" 

Minick  v.  Troy,  83  N.  Y.  514. 

In  accordance  with  these  principles  it  has  been  held 
that  a  charge  that  the  plaintiff  cannot  recover  if  guilty  of 
"  any  negligence  whatever  "  is  erroneous,  as  implying  that 
extreme  care  is  required  of  the  traveller. 

And  on  the  other  hand,  that  it  is  not  error  to  refuse  to 
charge  that  the  plaintiff  is  bound  to  use  extraordinary 
care  when  a  sidewalk  is  slippery  ;  and  a  charge  that  there 
is  demanded  "  reasonable  care  in  view  of  this  fact  "  was 
held  proper. 

Monahan  v.  Cohoes,  14  W.  Dig.  112. 


4.  Cases.  Recovery  barred.  Illustrative  of  the  last 
section  are  the  following  cases,  in  each  of  which  it  was 
held  that  the  plaintiff's  own  negligence  prevented  his 
recovery. 

(a)     Walking  on  an  embankment   thrown    up   while 
excavation  being  made — street  wide  enough  to  pass. 

Carolus  v.  New  York,  6  Bosw.  15. 


Contributory  Negligence.  135 

(b)  Walking  on  ice  in  daytime — plenty  of  space 
either  side  for  passing. 

Quincy  v.  Barker,  81  111.  300. 

(c)  Walking  hastily  or  negligently,  or  knowing  of 
defect  and  able  to  have  avoided  it  by  taking  the  other 
side  of  the  street. 

Lovenguth  v.  Bloomington,  71  111.  238. 

(d)  Walking  in  an  absent-mined,  inattentive,  negli- 
gent manner,  and  so  stumbling  over  an  obstruction  which 
a  prudent  person  could  have  avoided. 

Chicago  v.  Bixby,  84  HI.  82. 
Vicksburgk  v.  Hennessey,  54  Miss.  391. 

(e)  Stepping  deliberately  from  sidewalk,  with  suffi- 
cient light  and  good  eyesight,  into  a  pitfall  beside  the 

walk. 

Monmouth  r.  Sullivan,  8  HI.  Ap.  50. 
McLaury  v.  McGregor,  54  Iowa,  717. 

(f)  To  descend  a  stair-case  known  to  be  slippery, 
failing  to  use  a  hand-rail. 

Foster  v.  New  York  Central,  &c.  R.  R.  Co.,  2  How. 
Pr.  N.  S.  416;  23  W.  Dig.  18. 

(g)  Stepping  into  opening  on  sidewalk,  lighted  by  a 
lamp  immediately  over  opening — sidewalk  of  usual  width 
and  opening  close  to  house  for  light  and  ventilation. 

King  v.  Thompson,  87  Pa.  St.  365. 


136  Law. 

(li)  Where  a  street  opposite  a  building  in  process  of 
erection  is  so  encroached  upon  by  piles  of  rubbish  that 
only  sufficient  room  is  left  for  one  vehicle  to  pass — at- 
tempting in  daylight  to  pass  another  carriage  by  driving 
over  the  obstruction. 

Griffin  v.  New  York,  9  N.  Y.  456. 

(i)  Stranger  in  city,  on  dark  night,  voluntarily  left 
his  companion  who  was  familiar  with  the  locality  and  had 
a  lantern,  and  walked  through  an  opening  in  a  bridge. 

Cummins  v.  Syracuse,  3  East.  Eep.  198. 
[Mem.]  100  N.  Y.  637. 

(j)  Eunning  to  fire,  fell  over  stepping-stone  on  wide 
sidewalk,  in  front  of  lighted  post-office,  gas-light  beside 
stone. 

Dubois  v,  Kingston,  102  N.  Y.  219. 


5.  Presumption  of  safety.  The  ordinary  diligence  required 
of  a  city  in  the  care  of  its  streets  is  by  no  means  the  measure  of 
the  ordinary  diligence  required  of  a  traveller  upon  those  streets. 

Wilson  v.  Atlanta,  63  Ga.  291. 

The  city  is  charged  with  a  duty  to  keep  its  streets  in 
order,  and,  it  may  almost  be  said,  is  bound  to  act  upon  the 
assumption  that  they  are  unsafe. 

On  the  contrary  :  "  All  persons  using  streets  and  side- 
walks have  the  right  to  assume  that  they  are  in  good  and 
safe  condition,  and  to  regulate  their  conduct  upon  that 
assumption." 

Kenyon  v.  Indianapolis,  1  Wilson  (Ind.)  139. 


Contributory  Negligence.  137 

"  Any  person  travelling  a  sidewalk  of  a  city,  which  is 
in  constant  use  by  the  public,  lias  a  right,  when  using 
the  same  with  due  diligence,  to  presume,  and  act  upon 
the  presumption,  that  it  is  reasonably  safe  for  ordinary 
travel,  throughout  its  entire  width,  from  all  dangers  and 
annoying  obstructions  of  a  permanent  character." 

Indianapolis  v.  Gaston,  58  Ind.  224. 

"  A  person  passing  along  a  sidewalk  has  a  right  to 
presume  it  to  be  safe,  and  is  bound  to  no  special  care  ; 
and  is  not  bound  to  watch  for  unlawful  obstructions." 

Dorland  v.  N.  Y.  C.  &  H.  K.  R.  R.  Co.,  19  W.  Dig.  76. 

"  One  who  passes  along  a  sidewalk  has  a  right  to  pre- 
sume it  to  be  safe.  He  is  not  called  upon  to  anticipate 
danger,  and  is  not  negligent  for  not  being  on  his  guard." 

McGuire  v.  Spence,  91  N.  Y.  303. 

"  A  person  travelling  on  a  public  street,  if  he  exercises 
ordinary  care,  has  a  right  to  be  absolutely  safe  against  all 
accidents  arising  from  obstructions  or  imperfections  in 

the  streets." 

Lincoln  v.  Walker,  (Neb.)  30  Alb.  L.  J.  406. 
Chicago  v.  Hickok,  17  Bradw.  (111.)  142. 

11  The  streets  and  sidewalks  are  for  the  benefit  of  all 
conditions  of  people,  and  all  have  the  right,  in  using 
them,  to  assume  that  they  are  in  good  condition,  and  to 
regulate  their  conduct  upon  that  assumption.  A  person 
may  walk  or  drive  in  the  darkness  of  the  night,  relying 
upon  the  belief  that  the  corporation  has  performed  its 
duty  and  that  the  street  or  the  walk  is  in  a  safe  condition. 


138  Law. 

He  walks  by  a  faith  justified  by  law,  and  if  his  faith  is 
unfounded  and  he  suffers  an  injury,  the  party  in  fault 
must  respond  in  damages." 

Davenport  t\  Ruckman,  37  N.  T.  568. 

This  principle  is,  however,  subject  to  the  rule  that : 
"  Persons  walking  in  a  city  are  bound  to  take  notice  of 
the  existence  of  such  constructions  as  the  necessities  of 
commerce  and  the  convenient  occupation  of  residences 
render  common." 

(For  instance,  exterior  basement  stairs.) 

Buesching  v.  St.  Louis  Gas  Light  Co.,  6  Mo.  Ap.  85. 

It  should  also  be  observed  that  the  ordinary  care 
required  of  a  traveller  upon  the  highway  is  not  the  same 
as  that  of  one  about  to  cross  a  railroad  track,  "  where 
there  is  reason  to  expect  danger,  and  where  the  person 
crossing  must  be  on  the  look-out." 

Ckilds  v.  West  Troy,  23  Hun,  68. 
Gumb  v.  Twenty-third  St.  R.  R.  Co.,  1  N.  Y.  St.  R. 
715. 

6.  Right  to  whole  street.  One  not  only  has  a  perfect  right 
to  ivalk  across  a  street,  and  being  in  a  public  thoroughfare  has  a 
right  to  assume  that  his  rights  ivill  not  be  wrongfully  invaded, 

Moody  v.  Osgood,  54  N.  Y.  488. 

But  is  not  obliged  to  go  upon  a  cross-walk.  He  has  a  right 
to  assume  the  whole  street  to  be  reasonably  safe. 

Brusso  v.  Buffalo,  90  N.  Y.  679. 
Raymond  v.  Lowell,  6  Cush.  524. 


Contributory  Negligence.  139 

Knight  v.  Bath-on-the  Hudson,  21  W.  Dig.  301. 
Simons  v.  Gaynor,  89  Ind.  165. 

To  walk  upon  the  carriage-way  of  a  bridge,  though  it 
have  a  sidewalk,  is  not  per  se  negligent. 

Morrell  v.  Peck,  88  N.  Y.  398. 


7.  Knowledge  of  defect.  That  the  person  injured  kneio  of 
the  defect  or  obstruction  before  the  injury  does  not  per  se  estab- 
lish negligence  on  his  part. 

Diveny  v.  Elmira,  51  N.  Y.  506. 

Todd  v.  Troy,  61  Id.  506. 

Evans  v.  Utica,  69  Id.  166. 

Bassett  v.  Fish,  75  Id.  303. 

Weed  v.  Ballston,  76  Id.  329. 

Palmer  v.  Dearing,  93  Id.  7. 

Bullock  v.  New  York,  99  Id.  654. 

Twogood  v.  New  York,  102  Id.  216. 

Driscoll  r.  New  York,  11  Hun,  101. 

Koch  r.  Edgewater,  14  Id.  544. 

Darling  v.  New  York,  18  Id.  340. 

Harris  v.  Perry,  23  Id.  244  ;  rev'd  on  other  grounds, 

89  N.  Y.  308. 
Thomas  v.  New  York,  28  Id.  110. 
Pomfrey  v.  Saratoga,  34  Id.  607. 
Bateman  v.  Ruth,  3  Daly,  378. 
Vandercook  v.  Cohoes,  12  W.  Dig.  84. 
Dunham  v.  Canandaigua,  13  Id.  551. 
Gage  r.  Hornellsville,  24  Id.  276. 
Phillips  v.  Fishkill,  26  Id.  103. 
Montgomery  v.  Wright,  72  Ala.  411. 
Bronson  r.  Smithbury,  37  Conn.  199. 
Aurora  v.  Dale,  90  HI.  46. 
Huntington  v.  Breen,  77  Ind.  29. 
Madison  Co.  Comrs.  r.  Brown,  89  Id.  48. 
Albion  v.  Herrick,  90  Id.  545. 
Wilson  r.  Trafalgar,  &o.  Gravel  Road  Co. ,  93  Id.  287. 
Jeffrey  v.  Keokuk,  &c.  Ry.  Co.,  56  Iowa,  546. 
Osage  City  v.  Brown,  27  Kan.  74. 
Maultby  v.  Leavenworth,  28  Id.  745. 


140  Law. 

Emporia  v.  Scheindling,  33  Id.  485. 

Langan  v.  Atchinson,  (Kan.)  11  Pac.  E.  38. 

Prince  George's  Co.  Comrs.  v.  Burgess,  61  Md.  29. 

Dewire  v.  Bailey,  131  Mass.  169. 

Gilbert  v.  Boston,  139  Id.  313. 

Lowell  v.  Watertown,  (Mich.)  33  Alb.  L.  J.  19. 

Estelle  v.  Lake  Crystal,  27  Minn.  243. 

McKenzie  v.  Northfield,  30  Id.  456. 

Hubbard  v.  Concord,  35  N.  H.  52. 

Templeton  v.  Montpelier,  (Vt.)  30  Alb.  L.  J.  358. 

Kavanaugh  v.  Janesville,  24  Wis.  618. 

Kenworthy  v.  Ironton,  41  Wis.  647. 

The   rule  is  that  he  must   use  the  ordinary  care  and 
prudence  which  the  circumstances  demand. 

Diveny  v.  Elmira,  supra. 
Palmer  v.  Dearing,  supra. 
Bullock  v.  New  York,  supra. 
Koch  v.  Edgewater,  supra. 
Huntington  v.  Breen,  supra. 
Wilson  v.  Trafalgar,  &c.  Co.,  supra. 
Joliet  v.  Conway,  17  Bradw.  (111.)  577. 

And  recovery  will  not  be  prevented  unless  a  person  of 
ordinary  prudence  would  not  have  walked  there. 

McKenzie  v.  Northfield,  supra. 
Evans  v.  Utica,  supra. 

And  it  is  ordinarily  a  question  for  the  jury. 

Bullock  v.  New  York,  supra. 
Pomfrey  v.  Saratoga,  sup>ra. 
Driscoll  v.  New  York,  supra. 
Twogood  v.  New  York,  supra. 
Todd  v.  Troy,  supra. 
Brusso  v.  Buffalo,  90  N.  Y.  679. 
McGuire  v.  Spence,  99  N.  Y.  654. 

(a)  It  has  been  held  in  different  cases,  that  a  person 
under  such  circumstances  may  be  excused, 


Contributory  Negligence.  141 

If  his  attention  was  not  called  to  the  obstruction  at 
the  time  of  the  injury, 

Darling  r.  Now  York,  supra. 
Thomas  v.  New  York,  supra. 

or  if  he  believed  it  to  be  reasonably  safe,  and  there  was  no 
other  walk  convenient, 

Montgomery  v.  "Wright,  sup?-a. 
Albion  r.  Herrick,  supra. 

or,  though  watching  for  the  defect  in  order  to  avoid  it, 

was  prevented  from  doing  so  by  a  blinding  snow-storm  ; 

and  other  sidewalks    leading  to  his  home  were  equally 

unsafe. 

Aurora  v.  Dale,  supra. 

In  Jeffrey  v.  Keokuk,  <tc.  Ry.  Co.,  supra,  held  that  a 
person  may  voluntarily  and  without  actual  necessity 
expose  himself  to  danger  and  yet  recover. 

In  Osage  City  v.  Brown,  supra,  that  an  old  man  walk- 
ing rapidly  in  a  dark  night,  and  being  injured  upon  an 
obstruction  of  which  he  knew,  might  recover. 

So  in  Twogood  v.  New  York,  supra,  though  the  walk 
were  icy  and  the  other  walk  clear. 

And  in  Driscoll  v.  New  York,  supra,  though  the 
plaintiff  failed  to  pay  attention  to  a  hole  which  had 
existed  for  several  years  at  a  street  corner  near  her  house, 
on  account  of  her  mind  being  engrossed  in  business. 

(b)  The  following  cases  are  selected  in  which  it  was 
held  that  the  contributory  negligence  of  the  plaintiff  pre- 
vented a  recovery. 


142  Law. 

Plaintiff  voluntarily  attempted  to  pass  over  a  sidewalk 
of  a  city,  which  he  knew  to  be  dangerous  by  reason  of  ice 
upon  it,  which  he  might  easily  have  avoided. 

Schaefler  v.  Sandusky,  33  Ohio  St.  246. 

Shown  to  have  passed  over  same  slippery  sidewalk  an 
hour  before. 

Macomb  v.  Smithers,  6  111.  Ap.  470. 

Attempted  in  the  dark  to  pass  an  open  cellar-way  in  a 
sidewalk,  knowing,  but  for  the  time  forgetting  its 
existence. 

Bruker  v.  Covington,  69  Ind.  33. 

Voluntarily  left  safe,  well-lighted  sidewalk  and  fell 
into  a  hole  eight  feet  away. 

Zettler  v.  Atlanta,  66  Ga.  195. 

Cautioned  by  his  wife  just  before  stepping  on  the  ice. 
Durkin  v.  Troy,  61  Barb.  437. 

Knew  walk  was  unsafe  and  there  was  another  on  which 
she  might  have  passed  safely. 

Parkhill  v.  Brighton,  61  Iowa,  103. 

Attempted  in  night-time  to  cross  excavation  with  which 
he  was  familiar,  on  planks,  instead  of  going  around. 

Momence  v.  Kendall,  14  HI.  Ap.  229. 
Knowing  of  the   existence   of  ice  upon  the  sidewalk, 


Contributory  Negligence.  143 

took  the   risk  of  walking   there  rather  than  the  incon- 
venience of  turning  out  into  the  street. 

Erie  v.  Magill,  101  Pa.  St.  616. 

Or  of  going  around  through  an  alley. 

Fleming  v.  Lockhaven,  (Pa.)  31  A.  L.  J.  178. 

(c)     All  the  above  cases  should  be  considered  in  con- 
nection with  the  following  general  rule  : 

Where  one,  knowing  the  defective  condition  of  a  sidewalk, 
ventures  upon  it  without  taking  the  precaution  necessary  to  pre- 
vent afcdl,  he  cannot  recover. 

Aurora  v.  Brown,  11  111.  Ap.  122. 

Mayhew  v.  Burns,  (Ind.)  2  No.  East.  K.  793. 

Erie  v.  Magill,  101  Pa.  St.  616. 

Schaefler  v.  Sandusky,  33  Ohio  St.  246. 

"Wilson  v.  Charlestown,  8  Allen,  137. 

Parkbill  v.  Brighton,  61  Iowa,  103. 

Cook  v.  Johnson,  58  Mich.  437. 

8.  Latent  defects.    A  traveller  is  by  no  means  required  to 
avoid  defects  or  obstructions  which  he  cannot  see. 

Clark  r.  Lockport,  49  Barb.  580. 
Van  Alstine  v.  Clyde,  17  W.  Dig.  505. 

In  the  former  case,  an  icy  sidewalk  was  covered  with 
snow ;  in  the  latter,  the  defect  in  a  plank  walk  was  in  the 
string-pieces  and  out  of  sight. 


144  Law. 

9.  Defective  vision.  For  a  person  with  defective  sight  to 
walk  the  streets  of  a  city  is  not  per  se  negligent. 

Davenport  v.  Ruckman,  37  N.  T.  568. 
Eequa  v.  Rochester,  45  N.  Y.  129. 
Peach  v.  Utica,  10  Hun,  477. 
Harris  v.  Uebelhoer,  75  N.  Y.  169. 

In  the  first  three  cases,  the  plaintiff  was  partially 
blind,  and  unattended ;  in  the  last  case,  totally  blind  and 
attended  by  his  wife. 

In  Davenport  v.  Buckman  the  court  say : 

"  One  whose  sight  is  dimmed  by  age,  or  a  near-sighted 
person  whose  range  of  vision  was  always  imperfect,  or  one 
whose  sight  has  been  injured  by  disease,  is  each  entitled 
to  the  same  rights,  and  may  act  upon  the  same  assump- 
tion." 

So,  too,  to  drive  a  partly  blind  horse  has  been  held 
not  of  necessity  negligence. 

Wright  v.  Templeton,  132  Mass.  49. 

10.  Intoxication,  (a)  Intoxication  is  not  perse  contribu- 
tory negligence.  It  does  not  preclude  recovery,  unless  it  con- 
tributed thereto,  and  that  is  a  question  for  the  jury. 

Healy  v.  New  York,  6  T.  &  C.  92  ;  3  Hun,  708. 
Ditchett  v.  Spuyten  Duy vil,  &c.  R.  R.  Co.,  5  Hun,  162. 
(Rev'd  on  other  grounds,  67  N.  Y.  425.) 

In  other  words,  a  plaintiff  is  not  debarred  from  recov- 
ery by  reason  of  intoxication,  unless  he  was  thereby  dis- 
abled from  the  exercise  of  ordinary  care. 

O'Hagan  v.  Dillon,  42  Super.  456. 
(Rev'd  on  other  grounds,  76  N.  Y.  170.) 


Contributory  Negligence.  145 

But  if  proper  precaution  were  thereby  prevented  he 
cannot  recover. 

Illinois  Central  R.  R.  Co.  v.  Cragin,  71  HI.  177. 
Cramer  v.  Burlington,  42  Iowa,  315. 
Monk  v.  New  Utrecht,  104  N.  Y.  561. 

In  Wood  v.  Andes,  11  Hun,  543,  a  man  much  intox- 
icated, and  after  having  been  warned  against  it,  attempted 
to  cross  an  unsafe  bridge,  and  fell  and  was  killed ;  no 
recovery. 

(b)  On  the  otlter  hand,  tlie  fact  of  intoxication  cannot  avail 
to  excuse  contributory  negligence. 

Illinois  Cent.  R.  R.  Co.  v.  Hutchinson,  47  HI.  408. 

11  Infant.  In  case  a  child  of  immature  years  sustains 
injury  by  the  negligence  of  another,  and  an  action  is 
brought,  either  in  its  own  behalf  or  in  behalf  of  its  parents 
or  other  persons  entitled,  the  question  of  contributory 
negligence  is  more  complicated  than  in  the  case  of  an 
adult. 

(a)  The  contributory  negligence,  if  any,  may  be  thai  of  tin 
infant  itself  or  its  parent  or  the  'person  entrusted  with  its  care. 

Whether  or  not  negligence  may  be  imputed  to  the 
infant  itself  depends  upon  whether  or  not  it  is  of  such 
tender  age  as  to  be  not  responsible  for  its  acts. 

Mangani  v.  Brooklyn  R.  R.  Co.,  38  N.  Y.  466. 


If  the  child  is  sui  juris,  and  negligent,  or  if  non  sui  juris 

and  contributed  by  its  acts  to  the  injury,  and  the  acts  of 
10 


146  Law. 

the  parent  also  contributed  to  the  injury,  then  there  can 
be  no  recovery. 

(b)  Unless  the  child  did,  or  omitted  to  do,  something  icliich 

ivould  have  been  negligence  in  an  adult,  the   negligence   of  the 

parents  is  no  defense. 

Gowan  v.  Brooklyn  Cross-town   R.  R.  Co.,   2  Mo. 

Bui.  12. 
McGarry  v.  Loomis,  63  N.  Y.  104. 
Ihl  v.  Forty-second  St.  R.  R.  Co.,  47  N.  Y.  317. 
Birkett  v.  Knickerbocker  Ice  Co.,  41  Hun,  404. 
Cumming  v.  Brooklyn  City  R.  R.  Co.,  104  N.  Y.  659. 

(c)  Just  here  may  be  conveniently  noticed  a  line  of 
cases  in  New  York  in  which  the  whole  question  of  con- 
tributory negligence  of  infants  is  summarily  disposed  of 
as  follows : 

"  I  know  of  but  one  rule  on  the  subject,  as  the  law  is 
held  with  us,  and  I  think  it  applies  to  all  persons  without 
exception  and  makes  no  discrimination  on  account  of  age. 
It  is  that  degree  of  care  which  a  person  of  ordinary  pru- 
dence would  exercise  in  the  situation  supposed." 

Honegsberger  v.  Second  Ave.  R.  R.  Co.,  2  Abb. 

Dec.  378. 
Burke  v.  Broadway   &   Seventh  Ave.  R.  R.   Co., 

34  How.  Pr.  239. 
Solomon  v.  Central  Park,  &c.  R.  R.  Co.,  1  Sweeny, 

298. 

This  rule  is  probably  not  to  be  understood  as  assum- 
ing that  all  children,  of  no  matter  how  tender  age,  can  be 
personally  negligent ;  it  proceeds  rather  upon  the  theory 
that  there  can  be  no  case  in  which  some  one  may  not  be 
charged  with  contributory  negligence  ;  that  whenever  the 
child  does  what  would  be  negligent  in  an  adult,  and  is  not 
of  sufficient  age  to  be  responsible  for  his  actions,  it  fol- 


Contributory  Negligence.  147 

lows  as  matter  of  law,  that  the  parents  were  negligent  in 
permitting  him  to  get  into  danger. 

The  onus  is  then  cast  on  the  parents  in  every  case  of 
judging  correctly  of  the  responsibility  of  the  child  ;  and 
this  directly  afiects  the  child  himself,  since  he  is  bound 
by  the  contributory  negligence  of  the  parents. 

To  state  the  rule  in  other  words :  All  persons,  infants 
included,  are  bound  to  one  rigid  rule  of  ordinary  pru- 
dence. If  the  person  transgressing  this  rule  be  an  adult, 
or  any  person  sui  juris,  he  is  directly  bound  by  his  con- 
tributory negligence  and  his  recovery  barred.  If  non  sui 
juris,  the  direct  responsibility  is  shifted  upon  the  parent 
or  protector  ;  the  acts  of  the  infant  become  proof  positive 
of  the  negligence  of  the  parent,  and  the  infant  is  bound  by 
the  negligence  of  the  parent  and  his  recovery  still  bar- 
red. This  seems  a  harsh  rule.  It  is  said  in  16  Central 
L.  J.  p.  429 ;  also  in  6  Abb.  N.  C.  p.  101,  to  be  no  longer 
the  rule  in  this  State  ;  and  the  present  current  of  decision 
does  not  appear  to  sustain  it. 

(d)  The  more  approved  rule  seems  to  be  that  stated  in 
Eyder  v.  New  York,  50  Super.  220,  where  a  child,  while 
playing  on  the  sidewalk,  fell  into  an  excavation.  The 
court  say : 

"  Whether  sui  juris  or  not,  if  she  by  want  of  such  care 
and  attention,  on  her  own  part,  as  could  have  been  fairly 
expected  and  due  from  one  of  her  years  and  knowledge  of 
the  nature  of  the  danger  to  be  guarded  against,  had  caused 
this  injury,  such  negligence  on  her  part  would  go  far  to 
defeat  this  action.  If  sui  juris,  it  would  be  negligence 
imputable  to  herself  (Wendell  v.  R.  R.,  91  N.  Y.  426  ;  Thur- 


148  Law. 

ber  v.  R.  R.,  60  Id.  333-4).  If  sui  juris,  and  her  parents 
had  been  negligent  in  leaving  her  free  to  run  at  large  on 
the  sidewalk,  defective  as  it  was,  and  so  near  a  dangerous 
excavation,  then  their  negligence,  concurring  with  her 
negligence,  would  defeat  the  action  (Reynolds  v.  R.  R., 
58  N.  Y.  248 ;  Ihl  v.  R.  R.,  47  Id.  322)." 

(e)  Assuming  such  acts  or  omissions  on  the  part  of  the 
child  as  are  mentioned  in  (b)  above,  two  questions  com- 
monly arise  : 

(1)  Was  the  child  sui  juris;  or  to  what,  if  any,  degree 
of  care  must  it  be  held  ? 

(2)  If  not  sui  juris,  did  the  negligence  of  the  parent 
contribute  to  the  injury? 

(f)  As  to  the  first  question,  courts  have  sometimes  held 
as  matter  of  law  that  a  child  of  a  certain  age  was  or  was 
not  responsible  for  his  acts  so  as  to  be  chargeable  with 
his  own  negligence. 

Thus  in  Hartfield  v.  Roper,  21  "Wend.  615,  it  was  held 
that :  "  At  the  tender  age  of  two  or  three  years,  and  even 
more,  the  infant  cannot  personally  exercise  that  degree  of 
discretion  which  becomes  instinctive  at  an  advanced  age, 
and  for  which  the  law  must  make  him  responsible  through 
them  if  the  doctrine  of  mutual  care  between  the  parties 
using  the  road  is  to  be  enforced  at  all  in  his  case."  And 
the  same  was  held  in  Prendergast  v.  N.  Y.  C.  &  H.  R.  R. 
Co.,  58  N.  Y.  652. 

While  in  Messenger  v.  Dennie,  137  Mass.  197,  it  was  held 
that  in  case  of  a  boy  of  eight  years  old  his  own  acts  were 
as  matter  of  law  fatal  to  his  recovery. 


Contributory  Negligence.        Ill) 

The  question  of  hoio  far  young  persons  in  particular  cases 
are  to  be  held  responsible  for  their  acts  which  in  an  adult  would 
prevent  a  recovery,  is,  hoivever,  usually  left  to  the  jury  to 
determine. 

The  rule  is  variously  stated  ;  the  following  examples 
will  suffice : 

"  The  rule  in  regard  to  the  negligence  of  an  adult, 
and  that  in  regard  to  that  of  an  infant  of  tender 
years  is  quite  different.  The  adult  must  give  that  care 
and  attention  for  his  own  protection  that  is  ordinarily 
exercised  by  persons  of  discretion  and  intelligence  .  . 
Of  the  infant  of  tender  years  less  discretion  is  required, 
and  the  degree  depends  upon  his  age  and  knowledge. 
The  caution  required  is  according  to  the  maturity  and 
capacity  of  the  child,  and  is  to  be  determined  in  each  case 
by  the  attendant  circumstances." 

Chicago,  &c.  R.  R.  Co.  v.  Murray,  71  111.  G01. 
Government  St.  R.  R.  Co.  v.  Hanlon,  53  Ala.  70. 

"  There  is  no  fixed  age  at  which  children  are  bound  to 
exercise  the  same  diligence  as  adults.  The  question  of 
intelligence  is  always  for  the  jury." 

Houston  Ry.  Co.  v.  Simpson,  60  Tex.  103. 

"  The  degree  of  care  required  of  an  infant,  the  omission 
of  which  will  constitute  negligence  on  her  part,  is  to  be 
measured  in  each  case  by  the  maturity  and  capacity  of  the 
individual." 

Thurber  v.  Harlem  Br.  <fec.  R.  R.  Co.,  60  N.  Y.  326. 

"The  degree  of  care  required  of  an  infant  depends  upon 


150  Law. 

temperament,  characteristics  and  surroundings,  and  is  a 
question  for  the  jury  in  each  particular  case." 

Davis  v.  New   York,   N.  H.  &  H.  R.  R.  Co.,  9  W. 
Dig.  522. 

Other  cases  upon  this  point  are : 

Railroad  Co.  v.  Stout,  17  Wall.  657. 

Fallon  v.  Cential  Park,  &c.  R.  R.  Co.,  64  N.  T.  13. 

Byrnj  v.  N.  Y.  C.  t  H.  R.  R   Co.,  83  N.  Y.  620. 

Dowling  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  90  N.  Y.  670. 

Barry  v.  N.  Y.  C.  H.  R.  R.  R.  Co.,  92  N.  Y.  289. 

Jones  v.  Utica,  &c.  R.  R.  Co.,  36  Hun,  115. 

Ryan  v.  N.  Y.  C.  &  H.  R.  R.  R.  Co.,  37  Hun,  186. 

McGuire  v.  Spence,  91  N.  Y.  303. 

Kunz  v.  Troy,  5  N.  Y.  St.  R.  642. 

Thurber  v.  Harlem  Br.,  &c.  R.  R.  Co.,  69  N.  Y. 

326. 
Mangam  v.  Brooklyn  Ry.  Co.,  38  N.  Y.  455. 
McGovern  v.  N.  Y.  C,  &c.  R.  R.  Co.,  67  N.  Y.  417. 
Mowrey  v.  Cent  City  Ry.,  66  Barb.  43 ;  51  N.  Y. 

666. 
Miller  v.  McCloskey,  1  Civ.  Pro.  252. 
Finklestein  v.  N.  Y.  C,  &c.  R.  R.  Co.,  41  Hun,  34. 
Collins  v.  So.  Boston  Ry.  Co., (Mass.)  34  A.L.  J.  292. 

(g)  Under  the  rule  laid  down  in  the  Honegsberger  case, 
if  the  infant  were  not  responsible  for  his  acts  which  in  an 
adult  would  be  negligence,  it  would  follow  at  once  that 
his  parents  or  protectors  were  negligent.  This,  however, 
is  not  the  recognized  rule.  On  the  contrary,  the  courts 
incline  to  leave  this  question  to  the  jury  to  determine. 

Mangam  v.  Brooklyn  R.  R.  Co.,  38  N.  Y.  455. 
Prendergast  v.  N.  Y.  C.  &  R.  R.  Co.,  58  N.  Y.  652. 
Chrystal  v.  Troy  &  B.  R.  R.  Co.,  22  W.  Dig.  551. 
Kunz  v.  Troy,  5  N.  Y.  St.  R.  642. 

Thus  it  has  been  held  not  per  se  negligence   to   send 


Contributory  Negligence.  151 

children  of  certain  ages  to  school,  or  otherwise  into  pos- 
sible danger,  without  protection. 

Drew  v.  Sixth  Ave.  R.  R.  Co.,  26  N.  Y.  49. 
McGovern  r.  N.  Y.  (' .,  &a  R  R.  Co.,  67  N.Y.  417. 
Ihl  v.  Forty -second  St.  R.  R.  Co.,  47  N.Y.  317. 
Stafford  v.  Rubens,  (111.)  3  No.  East.  R.  568. 

And  yet  it  has  been  recently    held   as  matter  of  law 

that  the  parents  were  so  negligent  that  there  could  be  no 

recovery. 

Schindler  v.  N.  Y.,  Lake  E.  &  W.  R.  R.  Co.,  1  N.Y. 

St.  Rep.  289. 
Doran  v.  Troy,  22  W.  Dig.  230. 

(h)  While  a  child  of  tender  years  is  not  held  to  the 
same  degree  of  diligence  as  an  adult,  when  a  child  com- 
plains of  wrongs  to  himself,  he  cannot  recover  if  he  was 
the  heedless  instrument  of  his  own  injury. 

Flood  v.  Buffalo,  &c.  R.  R.  Co.,  23  W.  Dig.  501. 

It  seems  to  have  been  usually  held  in  this  State,  how- 
ever, that  the  same  rules  would  govern  under  like  circum- 
stances, whether  the  action  were  brought  by  the  child 
itself  or  by  the  parent. 

(i)  In  many  States  the  doctrine  of  imputed  negligence 
of  a  parent  to  bar  recovery  by  a  child  does  not  seem  to 
prevail,  where  the  action  is  brought  by  the  child. 

Huff  r.  Ames,  (Neb.)  30  Alb.  L.  J.  339. 

Citing  Daley  v.  Norwich,  &c.  R.  R.  Co.,  26   Conn. 

591. 
Cleveland,  &c.  R.  R.  Co.  r.  Manson,  30  Ohio  St.  451. 
No.  Pa.  R.  R.  Co.  r.  Mahouey,  57  Penn.  St.  187. 
Whirley  v.  Whiteman,  1  Head,  610. 
Government  St.  Ry.  Co.  v.  Hanlon,  53  Ala.  70. 
Norfolk,  &c.  R.  R.  Co.  r.  Ormsby,  27  Gratt.  455. 


152  Law. 

But   may  prevent  recovery  by  the   parent  suing  for 

services. 

Huff?1.  Ames,  supra. 

Citing  Glassey  v.  Hestonville,   &c.  Ey.  Co.,  57 

Penn.  St.  172. 
Louisville,  &c.  Canal  Co.  v.  Murphy,  9  Bush  522. 
Oil  City  Bridge  Co.   v.  Jackson,    (Pa.)    36  Alb. 

L.  J.  36. 

12.  Imputed  negligence,  (a)  One  who  rides  in  the  conveyance 
of  another,  of  tJie  management  of  which  that  other  has  the 
entire  control,  and  the  passenger  has  none,  and  is  himsef  ivith- 
out  negligence,  is  not  bound  by  the  other's  negligence  contribut- 
ing to  the  injuries. 

Chapman  v.  N.  H.  E.  E.  Co.,  19  N.  Y.  341. 
Colegrove  v.  N.  Y.  &  N.  H.  E.  Co.,  20  N.  Y.  492. 
Webster  v.  H.  E.  E.  E.  Co.,  38  N.  Y.  260. 
Metcalf  v.  Baker,  11  Abb.  Pr.  N.  S.431. 
Platz  v.  Cohoes,  24  Hun,  101;  8  Abb.  N.  C.  392;    89 

N.  Y.  219. 
Dyer  v.  Erie  Ey.  Co.,  71  N.  Y.  228. 
Eobinson  v.  N.  Y.  O,  &o.  E  E.  Co.,  66  N.  Y.  11. 
Scott  v.  Wood,  18  W.  Dig.  441. 
St.  Clair  St.  Ey.  Co.  v.  Eadie,  (Ohio)  32  A.  L.  J.  64. 
Follman  v.  Mankato,  (Minn.)  34  A.  L.  J.  391. 
Carlisle  v.  Brisbane,  (Pa.)  34  A.  L.  J.  507. 
Gaylord  v.   Syracuse,   &c.    E.  E.  Co.,  23  W.  Dig. 

396. 
Harvey   v.  New  York,   &c.  E.  E.  Co.,  23  W.  Dig. 

198. 
McCallum  v.  Long  Island  E.  E.  Co.,  38  Hun,  569. 
Masterson  v.  New  York  C,  &c.  E.  E.  Co,  84  N.  Y. 

247. 
Callahan  v.  Sharp,  16  W.  Dig.  505. 
But  see  Brown  v.  N.  Y.  C.  E.  E.,  32  N.  Y.  597. 


In  some  of  the  above  cases,  the  person  injured  was  a 
passenger  of  a  common  carrier ;  in  others,  not ;  in  some, 
was  riding  gratuitously ;  in  others,  for  hire.  But  the 
same  general  rule  was  held  to  apply. 


CONTTJBUTOJ.V    X I/, LICENCE.  153 

The  above  rule  v.-.,  •     be  at  variance  -with  the 

English  case  of  Thorogood  8   Common    B 

115,  in  which  it  was  held  that  a  ;  r  in  a  coach 

bound  by  the  contributory  j.  of  the    dril 

however,  remarks  upon  that  case  at  19  N.  \ .  343,  and  38 
N.  Y.  262  . 

(b)    Where,  however,  (!■•  '  of 

(he,  j>-  '.  or,  if  a 

or  protector,  the  ride 

Doran  r.  Troy,  22  W.  B 

In   such    cases   the  vehicle  may  fa  the 

immediate  control  of  thf  >r  the  protector, 

or  else  the  driver  may  have  been  I  I  or  servant. 

In  Callahan  v.  Sharp,  16  VV    Dig.  505,  it  was  held  that 
a  person   having  a   livery   carriage  and  di:  -  not 

bound  by  the  negligence  of  the  driver  (thus   overruling 
S.  C,  27  Hun,  85 

Of  oonrae,  if  the  child  were  Bid  juris  the  negligenct 

the  parent  cannot  be  imputed  to  it. 

Callahan  r.  Sharp,  sup 

Clair  St.  By.  <  Eadie,  (Ohio;  32   Alb.  L.  J. 

64, 

In  the  former  case  the  child  v. 
in  the  latter,  thirteen. 

13.  Imminent   danger.     W 
once  in  j 

■  'Ty   negUgetu  Ihe  be$t 

l>of>bi)ti.K  judgi 


154  Law. 

Bernhard  v.  E.,  <fcc.  E.  E.  Co.,  1  Abb.  Dec.  131. 
Buel  v.  N.  Y.  C.  E.  E.  Co.  31  N.  Y.  314. 
Coulter  v.  Am  ,  &c.  Ex.  Co.,  56  N.  Y.  585. 
Twomley  v.  Cent.  Pk.,  N.  &  E.  E.  E.  E.  Co.,  69  N. 

Y.  158. 
Lowery  v.  Manhattan  Ey.  Co.,  (N.  Y.)  1  No.  East,  E. 

608. 
Dyer  v.  Erie  Ey.  Co.,  71  N.  Y.  228. 
Voak  v.  No.  C.  Ey.  Co.,  75  N.  Y.  320. 
Cuyler  v.  Decker,  20  Hun,  173. 
Steiverman  v.  White,  48  Super.  523. 
Helmrich  v.  Hart,  16  W.  Dig.  356. 
Karr  v.  Parks,    40  Cal.  188. 
Lawrence  v.  Green,  (Cal.)  11  Pac.  E.  750. 
Stevenson  v.  Chicago,  &c.  E.  E.  Co.,  18  Fed.  Eep. 

493. 
Barton  v.  Springfield,  110  Mass.  131. 
Siegrist  v.  Arnot,  10  Mo.  Ap.  197. 
Gunz  v.  Chicago,  &c.  Ey.  Co.,  25  A.  L.  J.  36. 
Schultz  v.  Chicago,  <fcc.  Ey.  Co.,  44  Wis.  638. 

Similar  to  the  above — a  person  who,  in  a  desperate 
alternative,  is  injured  while  attempting  to  save  the  lives 
of  others,  is  not  necessarily  guilty  of  contributory  negli- 
gence. 

Eoll  v.  N.  C.  Ey.  Co.,  15  Hun,  496.  80  N.  Y.  647. 

Eckert  v.  L.  I.  E.  E.  Co.,  43  N.  Y.  502. 
Spooner  v.  D.,  L.  &  W.  E.  E.  Co.,  1  N.  Y.  St.  Eep. 
558. 

14.  Comparative  negligence.  In  some  States  it  is  held 
that  the  negligence  of  plaintiff  and  defendant  may  be 
compared,  and  recovery  had  or  refused,  according  to  the 
preponderance  of  evidence. 

Ivens  v.  Cincinnati,  &c.  Ey.  Co.,  (Ind.)  2  No.  East. 

E.  134. 
Chicago,  &c.  Ey.  Co.  v.  Payne,  59  111.  534. 
Cbicago,  &c.  Ey.  Co.  v.  Dimick,  96  Id.  42. 
Calumet  Iron,  &c.  Co.  v.  Martin,  (HI.)  3  No.  East. 

E.  456. 
Dush  v.  Fitzhugh,  2  Lea  (Tenn.)  307. 
Hughes  v.  Muscatine,  &c.  Co.,  44  Iowa,  672. 


Contributory  Negligence.  155 

So  far  as  this  means  merely  that  slight  negligence  on 
the  part  of  the  plaintiff  may  not  be  fatal  as  against  gross 
neligence  of  the  defendant,  the  New  York  courts  have  gone 
far  to  hold  it,  through  rejecting  the  doctrine  of  compar- 
ative negligence  as  held  in  other  States. 

Clark  r.  Kirwan,  4  E.  D.  Smith,  21. 
Green  v.  ErieRy.  Co.,  11  Hun,  333. 
McGrath  v.  H.  11.  R.  R.  Co.,  32  Barb.  144. 

In  the  Green  case,  the  court  hold  that  if  the  defendant 
by  the  use  of  ordinary  care  could  have  prevented  the 
injury,  the  plaintiff  may  recover,  though  his  negligence 
contributed  to  the  injury. 

So  in  case  of  a  child. 

Connery  v.  Slavin,  23  W.  Dig.  545. 

15.  Acts  held  not  negligent  to  bar  recovery. 

Playing  in  street. 

McGuire  v.  Spence,  91  N.  Y.  303. 
Kunz  v.  Troy,  5  N.  Y.  St.  R.  642. 

Standing  in  street. 

Hussey  v.  Ryan,  (Md.)  4  East.  R.  4G2. 

Driving  in  dark  night  in  country  without  lantern. 

Chamberlin  v.  Ossipee,  60  N.  H.  212. 
Daniels  v.  Lebanon,  53  N.  H.  284. 

Deviating  from  street  line  to  pass  excavation. 
Vale  v.  Bliss,  50  Barb.  358. 


156  Law. 

Driving   in   dark  and   allowing   horses   to  pick  their 

way. 

Eector  v.  Pierce,  3  T.  &  C.  416. 

16.  Aggravating  injury  by  subsequent  carelessness.  While 
this  subject  does  not  come  strictly  within  that  of  neg- 
ligence contributory  to  the  injury,  its  practical  bearing 
is  analogous,  and  it  will  be  considered  here. 

The  rule  may  be  stated  as  follows  : 

One  who  is  injured  by  the  negligence  of  another  is  bound  to 
use  ordinary  care  to  effect  his  cure  and  restoration;  but  he  is  not 
responsible  for  a  mistake,  and  ivhen  he  acts  in  good  faith  and 
under  the  advice  of  a  competent  physician,  even  if  it  is 
erroneous,  the  error  ivitt  not  shield  the  wrong-doer. 

Lyons  v.  Erie  Ry.  Co.,  57  N.  Y.  489. 
Hope  v.  Troy  &  L.  R.  R.  Co.,  40  Hun,  438. 
Loser  v.  Humphrey,  41  Ohio  St.  378. 
Pullman,  &c.  Co.  v.  Bluhm,  109  111.  20. 

In  Hope  v.  Troy  &  Lansingburgh  E.  B.  Co.,  where 
there  was  evidence  that  the  plaintiff  had  exposed  her- 
self after  the  injury,  and  her  recovery  was  hindered 
thereby,  the  court  say  the  question  of  her  con- 
tributory negligence  "depended  on  whether  she  went 
out  against  her  own  judgment,  recklessly  and  carelessly, 
or  whether  she  had  occasion  to  go  out,  and  felt  she  could 
do  so  without  being  guilty  of  want  of  fair  care  and 
caution." 

(a)  The  evidence  of  such  negligence  is  proper  in  miti- 
gation of  damages. 

Carpenter  v.  Blake,  75  N.  Y.  12. 
Crete  v.  Childs,  11  Neb.  252. 


CHAPTER  XIV. 

SOME   SPECIAL  DANGERS. 

1.  Ice  as  an  obstruction. 

2.  Injuries  by  coasters. 

1.  Ice  as  an  obstruction.  Iu  northern  latitudes,  where 
show  falls  and  ice  forms,  a  very  large  number  of  injuries 
are  caused  by  falling  iipon  the  streets  and  sidewalks  thus 
rendered  slippery.  These  give  rise  to  endless  litigations, 
in  which  usually  municipal  corporations  are  defendants, 
although  in  some  instances  individuals  are  charged  upon 
the  theory  that  the  ice  was  caused  by  their  acts. 

In  these  actions  it  is  usually  sought  to  charge  munici- 
pal corporations  upon  the  ground  of  the  general  liability 
to  keep  their  streets  in  reasonably  safe  condition  for 
travel.  They  are  charged  with  faults  of  omission — not 
of  commission. 

The  principles  of  law  governing  these  cases  are  the 
same  as  in  case  of  other  obstructions  rendering  streets 
unsafe,  and  many  of  this  class  of  cases  are  cited  under  the 
respective  subjects  which  they  illustrate. 

It  is  only  purposed  to  notice  here  some  discussion  as 

to  when  ice  forms  an  obstruction  at  all  so  that  a  city  may 

be  charged  with  negligence  in  not  removing  it 

[157] 


158  Law. 

(a)  That  ice  and  snow  often  render  streets  less  safe 
than  they  otherwise  would  be,  is  self-evident.  But  much 
difference  of  opinion  has  arisen  as  to  whether  ice,  though 
admittedly  dangerous,  is  therefore  such  an  obstruction  as 
will  charge  a  city  with  negligence. 

There  is  probably  no  dispute  but  that  snow  and  ice 
may  exist  upon  a  street  in  such  shape  as  to  form  an 
obstruction ;  for  instance,  when  it  is  heaped  up,  or  pre- 
sents a  rough  or  uneven  surface. 

Street  v.  Holyoke,  105  Mass.  82. 
McAuley  v.  Boston,  113  Mass.  503. 
Providence  v.  Clapp,  17  How.  (U.  S.)  161. 
McLaughlin  v.  Corry,  77  Penn.  109. 

The  distinction  has  often  been  taken  that  while  ice  in 

ridges  or   hummocks    may   be   termed   an   obstruction, 

smooth  ice  is  not. 

Stanton  v.  Springfield,  12  Allen,  566. 
Luther  v.  Worcester,  97  Mass.  268. 
Pinkham  v.  Topsfield,  104  Mass.  78. 
Broburg  v.  Des  Moines,  63  Iowa,  523. 
Chicago  v.  McGiven,  78  111.  347. 
Smyth  v.  Bangor,  72  Maine,  249. 
Mauch  Chunk  v.  Kline,  100  Penn.  St.  119. 

In  Stanton  v.  Springfield,  the  court  say  :  "  No  reported 
case  is  found,  in  which  it  has  been  decided  that  a  way  is 
defective  merely  because  it  is  slippery,  if  in  all  other 
respects  in  good  order  and  properly  constructed,  and  the 
ice  constituting  no  obstruction  except  by  its  smoothness." 

Although  this  distinction  has  probably  not  been 
squarely  taken  in  any  decision  in  New  York,  yet  stress  is 
laid  in  many  cases  upon  the  fact  that  the  ice  in  given 
cases  was  in  fact  uneven. 


SrEciAL  Dangers.  1£9 

In  Durkin  v.  Troy,  Gl  Barb.  437,  and  Mosey  v.  Troy, 
Id.  580,  the  respects  of  counsel  were  paid  to  the  law  of 
Massachusetts  cases  holding  to  the  distinction,  but  the 
court  seems  in  neither  case  to  have  found  the  determina- 
tion of  the  question  necessary. 

In  the  following  cases  it  has  been  recognized  as  a  rule 
that  glare  and  smooth  ice  upon  a  sidewalk  may  be  as  much 
an  obstruction  as  that  which  is  rough  or  uneven. 

Cloughessy  v.  "Water-bury,  51  Conn.  405. 
Kinney  v.  Troy,  38  Hun,  285. 

See  also  dissenting  opinion  in 

Muller  v.  Newburgh,  32  Hun,  24. 

It  is  true  that  a  rule  which  should  make  municipal 
corporations  liable  for  every  injury  caused  by  their 
streets  being  rendered  unsafe  by  the  elements  would  be 
unjust.  It  is  in  view  of  this  evident  difficulty  that  it  is 
often  held  that  cities  cannot  be  held  accountable  for 
obstructions  caused  by  the  storms  of  the  season  unless 
they  have  sufficient  time,  after  notice,  actual  or  construct- 
ive, to  make  the  streets  safe. 

Gibson  v.  Jobnson,  4  HI.  Ap.  288. 
Sae  also  cases  cited  at  page  124. 

But  that  would  seem  the  more  reasonable  rule  which 
treats  that  as  an  obstruction  which  renders  the  street 
unsafe,  no  matter  what  its  nature  or  how  it  may  be  caused, 
and  one  for  which  a  city  may  be  liable  under  proper 
circumstances,  but  leaves  the  jury  to  determine  each 
particular  case  with  reference  to  the  elements  of  reasona- 
ble care  and  notice. 


160  Law. 

It  is  true  tliat  ice  naturally  becomes  ridged  and  uneven 
by  accumulation,  and  that  accumulations  of  ice  may  be 
more  exactly  obstructions  than  ice  which  is  smooth. 

Moreover,  that  accumulation  implies  time,  and  time  is 
an  element  of  constructive  notice.  But  it  would  seem 
that  the  reasoning  is  fallacious  of  those  cases  in  which 
smooth  ice  is  deemed  to  be  not  an  obstruction  for  which 
a  city  may  be  liable  ;  first,  in  that  it  fails  to  recognize  the 
principle  that  safety  is  the  thing  to  be  achieved,  and  that 
whatever  tends  to  produce  unsafety  is  an  obstruction 
within  the  use  intended  for  the  word  in  this  connection  ; 
and  second,  in  failing  to  recognize  that  smooth  ice  may 
have  been  just  as  long  accumulating  as  rough,  and  con- 
structive notice  to  the  city  may  be  just  as  well 
established. 

(b)  In  some  cases  where  cities  have  been  held  liable 
the  defect  has  been  caused  in  part  by  the  ice  and  in  part 
by  the  defective  walk  beneath. 

Atchison  v.  King,  9  Kan.  553. 

Mauch  Chunk  v.  Kline,  100  Pa.  St.  119. 

In  the  latter  case,  the  ice  formed  over  cobble-stones 
laid  between  the  flat  stones  upon  the  walk. 

2.  Injuries  by  coasters.  Attempts  have  been  made  to 
charge  municipal  corporations  with  liability  for  injuries 
sustained  by  reason  of  coasting  upon  their  streets. 

Two  classes  of  cases  arise. 

(a)    Where  recovery  is  sought  upon  the  general  ground 


Special  Dangers.  161 

that   coasting  renders   the   streets  unsafe,  and  so  it  is  a 
defect  which  the  city  should  remedy. 

Upon  this  it  was  held  that  no  such  liability  exists,  in 

Faulkner  o.  Aurora.  85  Ind.  130. 
Shepherd  v.  Chelsea.  4  Allen,  113. 
Pierce  v .  New  Bedford  129  Mass.  534. 
Hutchinson  v.  Concord,  41  Vt.  271. 
Bay  j>.  Manchester,  46  N.  H.  59. 
Lafayette  v.  Timberlake,  88  Ind.  330. 
Calwell  v.  Boone,  51  Iowa,  687. 

In  Faulkner  v.  Aurora,  it  was  also  held  that  the  city 
would  neither  be  liable  because  of  its  failure  to  prohibit 
coasting  by  ordinance,  nor  for  the  failure  of  its  officers  to 
enforce  an  ordinance  prohibiting  coasting  upon  the  streets. 

(b)  "Where  the  city  licenses  coasting  generally  or  sets 
aside  particular  streets  for  that  purpose.  In  such  cases 
it  is  sought  to  charge  the  corporation  as  having  licensed 
a.  nuisance. 

In  Baltimore  v.  Marriott,  9  Md.  1G0,  the  city  was 
held  liable  upon  that  ground  ;  and  in  Schultz  v.  Milwaukee, 
49  Wis.  254,  is  a  dictum  to  the  same  effect. 

The  contrary  was  held  in 

Burford  r.  Grand  Bapids,  18  No.  "West.   Bep.  571; 

29  Alb.  L.  J.  263. 
Steele  v.  Boston,  128  Mass.  583. 

1( 


CHAPTER  XV. 

SHITTING  LIABILITY.     EECOVEBY  O^EB, 


A.  Shifting  Liability. 

1.  By  ordinance. 

2.  By  charter. 
8.   By  contract. 

4.   Obstruction  by  railroads. 

B.  Becovery  Over. 

1.  General  rule. 

2.  Ground  of  liability. 

3.  None  against  abutting  owner. 

4.  Notice. 


A.    Shifting  Liability. 

1.  By  ordinance.  A  municipal  corporation  cannot  relieve 
■itself  from  liability  for  negligence  in  the  care  of  its  streets  by 
imposing  the  same  duty  upon  the  owners  of  adjoining  lots. 

Wallace  v  New  York,  18  How.  Pr.  169. 
Wilson  v.  New  York,  1  Denio,  595. 
Cushen  v.  Auburn,  22  W.  Dig.  387. 
Baltimore  v.  Marriott,  9  Md.  160. 
Hayes  v.  Cambridge,  138  Mass.  461. 
Taylor  v.  Yonkers,  26  W.  Dig.  376. 

Though  it  has  been  held  that  a  city  may  excuse  itself 
from  liability  by  an  ordinance  requiring  one  licensed  to 

[182]      . 


Shifting  Liability.  163 

obstruct  the  streets  for  building  purposes  to  place  lights 
at  the  obstruction. 

McKenna  v.  New  York,  47  Super.  541. 

Also  that  it  is  proper  to  prove  the  existence  of  an 
ordinance  as  some  evidence  to  warrant  the  presumption 
by  the  city  that  it  would  be  obeyed. 

Eeed  v.  New  York,  31  Hun,  311. 

Knupfle  v.  Knickerbocker  Ice  Co.,  84  N.  Y.  488. 

In  Illinois  it  is  held  that  a  city  has  not  the  constitu- 
tional power  to  compel  owners  or  occupants  of  premises  to 
keep  the  sidewalks  and  gutters  clear  of  snow  and  ice,  or 
sprinkled  with  ashes  or  sand  in  case  it  cannot  be  removed. 

Chicago  v.  O'Brien,  111  111.  532. 

This  is  believed  to  be  the  rule  nowhere  else. 
Notes  of  Cases,  31  Alb.  L.  J.  362. 

2.  By  charter.  -^  charter  jirovision  requiring  ht-oicncrs  to 
keep  their  sidcivalks  in  repair  does  not  raise  the  presumption 
that  the  lot-owner  has  done  his  duty,  so  as  to  free  the  city  (there 
being  no  proof  of  any  requisition  on  the  lot-oicner). 

Niven  r.  Eochester,  76  N.  Y.  619. 

Cain  r.  Syracuse,  29  Hun,  105;  95  N.  Y.  83. 

Cushen  v.  Auburn,  22  W.  Dig.  387. 

Nor  where  the  municipal  authorities  are  authorized  to 
compel  owners  or  occupants  to  repair  sidewalks  or  in 
default  to  do  it  themselves,  does  the  service  of  notice  to 
repair  upon  the  owner  free  the  city. 

Bussell  v.  Canastota,  98  N.  Y.  496. 


164  Law. 

3.  By  contract.  ^  municipal  corporation  cannot  escape  re- 
sponsibility for  non-observance  of  its  duty  to  Jceep  its  streets  in 
repair,  upon  the  plea  that  it  has  contracted  with   another  party 

to  repair  them. 

Jacksonville  v.  Drew,  19  Flor.  106. 

4.  Obstruction  by  railroad.  A  municipal  corporation  is 
liable  when  the  obstruction  is  placed  by  a  railroad  company,  the 
same  as  though  it  tvere  placed  by  an  individual. 

Sides  v.  Portsmouth,  59  N.  H.  24. 

And  this  is  true  whether  the  railroad  company  used 
the  street  under  license  from  the  city, 

Campbell  v.  Stillwater,  32  Minn.  308. 

or    under    a    statute    imposing  a   liability  to  keep  the 
street  in  repair. 

Tierney  v.  Troy,  41  Hun,  120. 

B.  Eecovery  Over. 

1.  General  rule.  Where  a  person  has  negligently  or  unlaw- 
fully created  an  obstruction  or  defect  in  a  street  of  a.  municipal 
corporation,  and  the  latter  has  been  compelled  to  pay  a  judgment 
recovered  against  it,  for  damages  sustained  by  an  individual 
caused  by  such  defect,  it  has  an  action  over  against  such  person. 

Port  Jervis  v.  First  Nat.  Bk.  of  P.  J.,  96  N.  Y.  550. 
Bochester  v.  Montgomery,  72  N.  Y.  65. 
Seneca  Falls  v.  Zalinski,  8  Hun,  571. 
Troy  v.  Troy  &  L.  E.  B.  Co.,  49  N.  Y.  657. 
Brooklyn  v.  Brooklyn  City  B.  B.  Co.,  47  N.  Y.  475. 
Catterlin  v.  Frankfort,  79  Ind.  547. 
Bobbins  v.  Chicago,  4  Wall.  657. 
Lowell  v.  Short,  4  Cush.  275. 
Boston  v.  Worthington,  10  Gray,  496. 


Recovery  Over.  165 

2.  Grounds  of  liability,  (a)  Licensee.  In  case  the  ob- 
struction was  caused  by  a  licensee,  tlie  ri^lit  of  recovery 
over  depends  upon  his  contract,  express  or  implied,  to 
perform  the  act  permitted  in  such  a  manner  as  to  protect 
the  public  from  danger  and  the  municipality  from  liability. 

Port  Jervis  v.  First  Nat.  Bank,  9(5  X.  Y.  550. 
Brooklyn  v.  Brooklyn  City  R.  R.  Co.,  47  N.  Y.  475. 
Congreve  v.  Morgan,  18  N.  Y.  84. 
Troy  v.  Troy  &  L.  B.  R.  Co.,  49  N.  Y.  657. 

In  the  first  two  cases,  the  liability  was  implied  ;  in  the 
last,  expressed  in  the  contract. 

And  the  fact  that  the  obstruction  was  made  with  the 
knowledge  of  the  city  places  the  person  at  fault  on  the 
same  ground  as  the  licensee. 

Seneca  Falls  v.  Zalinski,  8  Hun,  571. 

In  such  a  case  the  licensee  can  not  defend  upon  the 
ground  that  the  work  was  done  for  him  by  an  independ- 
ent contractor. 

Robbins  v.  Cbicago,  4  Wall.  657. 

(b)  Contractor.  In  case  of  work  done  for  the  city  upon 
contract,  the  liability  of  the  contractor  must  be  expressed, 
and  in  case  it  is  not  and  a  judgment  is  procured  against 
the  city  it  cannot  recover  over  against  the  contractor. 

Buffalo  v.  Holloway,  7  N.  Y.  493. 

(c)  Wrong-doer.  A  person  causing  a  street  to  be  un- 
safe while  doing  an  act  without  contract  or  license  is 
liable  to  recovery  over,  upon  the  principle  that  he  is  a 
guarantor  of  the  safety  of  the  street. 


166  Law. 

3.  Abutting  owner.  The  abutting  owner  is  not  without 
statute  or  charter  liable  for  the  care  of  streets.  In  such  a  case 
there  can  be  no  recovery  over. 

Fulton  v.  Tucker,  5  T.  &  C.  621. 

4.  Notice.  Notice  of  suit  brought  and  opportunity  to 
defend  is  usually  given  the  person  causing  the  obstruc- 
tion, by  the  corporation  intending  to  hold  him  to  recovery 
over. 

The  nature  and  precise  effect  of  this  notice  give  rise 
to  some  questions. 

(a)  Express  notice  is  unnecessary.  It  is  enough  that 
the  party  knew  the  suit  was  pending  and  might  have 
defended  it. 

Bobbins  v.  Cbicago,  4  Wall.  657. 
Port  Jervis  v.  First  Nat.  Bk.,  96  N.  Y.  550. 
Barney  v.  Dewey,  13  Jobns.  224. 
Beers  v.  Pinney,  12  Wend.  309. 
Heiser  v.  Hatch,  86  N.  Y.  614. 

(b)  The  omission  to  give  notice  does  not  go  to  the  right 
of  action,  but  simply  changes  the  burden  of  proof,  and  im- 
poses upon  the  party  against  whom  the  action  was  recov- 
ered the  necessity  of  again  litigating  and  establishing  all 
the  actionable  facts. 

Port  Jervis  v.  First  Nat.  Bk.,  supra. 
Aberdeen  v.  Blackmar,  6  Hill,  324. 
Bridgeport  Ins.  Co.  v.  Wilson,  34  N.  Y.  275. 
Binsse  v.  Wood,  37  N.  Y,  526. 

(c)  With  notice,  the  record  of  the  judgment  against  the 
city  is  competent  evidence  against  the  obstructor,  and  is 


Recovery  Oter.  167 

conclusive  as  to   his  liability  and   as   to  the  amount   of 
recovery. 

Troy  r,  T.  &  L.  R.  R.  Co,,  49  N.  Y.  657. 

Conclusive  so  far  as  relates  to  the  cause  of  action, 
amount  of  damages,  and  other  matters  necessarily  involved 
therein. 

Seneca  Falls  v,  Zalinski,  8  Hun,  571, 

Conclusive  both  as  to  liability  of  corporation  to  person 
injured  and  as  to  any  matter  which  might  have  been 
urged  as  a  defense ;  so  as  to  contributory  negligence. 

Rochester  v.  Montgomery,  72  N.  Y.  65. 
Boston  v.  Worthington,  10  Gray,  496. 

As  to  the  measure  of  damages,  some  question  of  its 
conclusiveness  in  cases  where  the  liability  depends  on 
contract  was  raised  in  Brooklyn  v.  Brooklyn  City  R.  R. 
Co.,  47  N.  Y.  at  p.  481,  but  it  is  assumed  to  apply  to  such 
a  case  in  Rochester  v.  Montgomery,  at  p.  G7. 


PART  II. 
PRACTICE. 

The  grouping  of  the  following  subjects  under  the 
generic  head  of  practice,  will  undoubtedly  form  an  arbi- 
trary arrangement  and  one  not  strictly  correct  in  many 
particulars.  The  idea  is,  however,  to  take  the  position, 
as  well  as  may  be,  of  the  practitioner  to  whom  a  city- 
negligence  case  is  brought,  and  to  consider  some  of  the 
practical  questions  that  are  likely  to  arise  prior  to  and 
during  the  trial. 


CHAPTER  I. 

STATUTE  OF  LIMITATIONS. 

1.  Introductory. 

2.  Action  by  person  injured. 

3.  Action  for  loss  of  services. 

4.  Injuries  resulting  in  death. 

5.  Statute  retroactive. 

6.  62  How.  Pr.  255. 

7.  Cohoes  charter. 

8.  Schenectady  charter. 

9.  In  Oswego. 

10.  Limitation  of  notice. 
[168] 


Statute  of  Limitations.  1C9 

1.  Introductory.  The  very  first  question  to  consider 
is  whether  or  not  the  time  has  elapsed  within  which  an 
action  may  be  brought.  That  answered  in  the  affirmative, 
all  further  labor  is  wasted. 

The  statutes  of  different  States  being  different,  no 
attempt  will  be  made  to  consider  them  outside  the  State 
of  New  York,  nor  will  all  the  special  statutes  relating  to 
the  several  municipalities  within  the  State  be  separately 
treated. 

It  will  be  found  that  under  different  circumstances 
three  distinct  rules  apply :  First,  when  the  action  is 
brought  by  the  person  injured ;  second,  by  a  husband  or 
parent  for  loss  of  services  ;  third,  for  injuries  resulting  in 
death. 

2.  Action  by  person  injured.  An  action  by  the  person  in- 
jured, to  recover  damages  for  a  personal  injury,  resulting  from 
negligence,  must  be  commenced  within  three  years  from  the  dale 
of  the  injury. 

Code  Civ.  Pro.  \  383,  subd.  5. 

Dickinson  v.  New  York,  92  N.  Y.  584. 

Watson  v.  Forty- second  St.  R.  R.  Co.,  93  N.  Y.  522. 

Webber  v .  Herkimer,  <fec.  R.  R.  Co.,  35  Hun,  44. 

Prior  to  1876,  the  old  Code  provided  that  "an  action 
.  .  .  for  any  other  injury  to  the  person  ...  of 
another,  not  arising  on  contract,  and  not  hereinafter 
enumerated  "  should  come  within  the  six  years  limitation 
class. 

By  Laws  1876,  ch.  431,  section  7,  an  action  for  injury 
to  the  person  was  put  in  the  one  year  class. 


170  Peactice. 

But  upon  the  enactment  of  the  new  Code  in  1877  the 
limitation  was  extended  to  six  years,  with  a  special  ex- 
ception in  the  case  of  personal  injuries  resulting  from 
negligence,  which  were  put  in  the  three  years  class,  as 
above  stated. 

In  cities  of  50,000  inhabitants  and  over,  the  action  must 
be  commenced  within  one  year.     Laws  of  1886,  p.  501,  §  1. 

3.  Action  for  loss  of  services.  In  this  case  the  action  is 
brought  by  a  husband  to  recover  for  loss  of  the  services  of  his 
wife  by  reason  of  an  injury  to  her  person,  the  six  years  limita- 
tion applies. 

Groth  v.  Washburn,  34  Hun,  509. 

This  upon  the  ground  that  an  action  is  brought,  not 
for  a  personal  injury  at  all,  but  for  the  result  of  an  injury 
to  "  his  rights,  interests  and  property." 

4.  Injuries  causing  death.  In  case  the  action  is  brought  by 
an  executor  or  administrator  of  a  person  ivhose  injuries 
resulted  in  death,  it  must  be  brought  within  two  years. 

Code  Civ.  Pro.  §  1902. 

The  preceding  statute  to  the  same  effect  was  contained 
in  ch.  450,  Laws  1847,  as  amended,  Laws  1849,  ch.  256, 
and  Laws  1870,  ch.  78. 

Under  these  statutes  has  been  decided  : 
Bonnell  v.  Jewett,  24  Hun,  524. 

5.  Statute  retroactive.  Where  one  period  of  limitation  is 
in  effect  at  the  time  of  the  injury,  and  another  at  the  commence- 
ment of  the  action,  the  latter  prevails. 


Statute  of  Limitations.  171 

Dubois  r.  Kingston,  20  Hun,  500. 
Reversed  on  other  grounds,  102  N.  Y.  219. 
Watson  v.  Forty-second  St.  R.  R.  Co.,  93  N.  Y.  522. 
Hirsch  r.  Buffalo,  21  W.  Dig.  312. 


The  contrary  was  held  in  : 

Carpenter  v.  Shimer,  24  Hun,  464. 
Goillotel  r.  New  York,  87  N.  Y.  440. 

(Observe  that  in  both  the  above  Court  of  Appeals 
decisions  the  ruling  favors  the  plaintiff.) 

6.  Theory  of  62  How.  Pr.  255.  It  was  held  by  the  special 
term,  in  Dickinson  v.  New  York,  upon  a  demurrer  to  the 
defense  of  the  statute  of  limitations,  that  an  action  brought 
against  the  city  for  failure  to  keep  its  streets  in  repair, 
was  for  a  wrongful  act  rather  than  for  negligence ;  and 
hence  that  the  six  years  limitation  applied.  This  was 
reversed  by  the  general  term  (28  Hun,  254),  and  the  latter 
judgment  affirmed,  at  92  N.  Y.  584. 

7.  Under  Cohoes  charter.  The  provision  of  the  Cohoes 
charter  (Laws  1869,  ch.  912,  title  13,  section  5),  that  no 
action  against  the  city  on  a  contract  obligation  or  liabil- 
ity, express  or  implied,  shall  be  commenced  except 
within  one  year  after  the  cause  of  action  has  accrued,  was 
held  to  apply  to  actions  upon  contracts  only,  in 

McGaffin  r.  Cohoes,  74  N.  Y.  387. 

8.  Schenectady  charter.  Laws  1882,  ch.  294,  provides 
that  all  actions  for  defective  streets  must  be  brought 
within  one  year. 


172  Practice. 

Held  constitutional  in 

Van  Vranken  v.  Schenectady,  31  Hun,  516. 

9.  In  Oswego.    The  period  is  fixed  by  statute   at   one 

year. 

Laws  1877,  ch.  127,  \  15. 

Dalrymple  v.  Oswego,  25  W.  Dig.  332. 

10.  Limitation  of  notice.  It  should  be  added  here  that 
the  time  for  presentation  of  notice  of  claim  is  also  some- 
times limited.  Thus,  in  each  of  the  following  cities  to 
three  months. 

Albany : 

Laws  1883,  p.  364,  g  45. 

Schenectady  : 

1  Laws  1882,  p.  359,  \  4. 

Oswego : 

1  Laws  1877,  p.  132,  §  15. 


CHAPTER  II. 

NOTICE    OF    CLAIM. 

A.  New  York  Statute  as  to  Costs. 

1.  Code  Civ.  Pro.  \  2345. 

2.  Act  of  1859. 

3.  Adjudications. 

4.  Does  not  apply  to  actions  for  wrongs. 

B.  New  Yokk  Act  as  to  Certain  Cities. 

1.  Statute. 

2.  Application. 

C.  Under  Charters. 

1.  Provisions  illustrated. 

2.  Application. 

3.  Construed  prospectively. 

4.  Under  Buffalo  charter. 

D.  General  Provisions. 

1.  Introductory. 

2.  To  whom  presented. 

3.  What  to  present. 

4.  Amount  claimed. 

5.  Contents  of  notice. 

Having  decided  in  a  given  case  that  it  is  not  too  late 
to  seek  a  remedy,  the  next  requisite  is  a  presentation  of 
a  claim  for  relief,  where  required,  to  some  officer  or  de- 
partment of  the  corporation  designated  by  statute  for  that 
purpose.  The  several  statutes  will  not  be  considered. 
Sometimes  they  relate  to  entire  States,  sometimes  to  sin- 
gle cities. 

[173] 


174  Practice. 

In  New  York  there  are  a  general  law,  making  the 
recovery  of  costs  in  certain  actions  against  municipal 
corporations  dependent  on  the  presentation  of  a  claim, 
and  numerous  special  charter  provisions,  the  nature  and 
effect  of  the  two  being  quite  distinct.  And,  in  addition 
to  these,  a  general  provision  for  notice  to  the  corporation 
attorney  in  cities  of  50,000  population  or  over. 

A.    New  York  Statute  as  to  Costs. 

1.  Code  Civ.  Pro.  §  3245.  "  Costs  cannot  be  awarded  to 
the  plaintiff  in  an  action  against  a  municipal  corporation 
in  which  the  complaint  demands  a  judgment  for  a  sum  of 
money  only,  unless  the  claim  upon  which  the  action  is 
founded  was,  before  the  commencement  of  the  action, 
presented  for  payment  to  the  chief  fiscal  officer  of  the 
corporation." 

2.  Act  of  1859.  This  is  the  successor  of  a  similar  act 
(Laws  1859,  ch.  262,  §  2),  differing  from  it  only  in  restrict- 
ing the  demand  to  one  for  a  sum  of  money  only. 

3.  Adjudications  have  been  had  upon  various  points 
relative  to  this  section :  such  as  that  it  does  not  apply  in 
justices'  courts. 

Marsh  v.  Lansingburgh,  31  Hun,  514. 

That  it  does  not  apply  to  costs  on  appeal. 

Utica  Water  Works  v.  Utica,  31  Hun,  426. 

That  in  Kingston   the   treasurer  is   the   chief  fiscal 

officer. 

Dressel  v.  Kingston,  32  Hun,  526. 


Notice  of  Claim.  175 

That  in  Buffalo  presentation  to  the  common  council  is 
sufficient, 

Williams  p.  Buffalo,  25  Hun,  301. 

and  was  in  Kochester  until  1880, 

Butler  r.  Rochester,  4  Hun,  321. 

when   the  treasurer  was   by  statute  made   chief    fiscal 

officer. 

Baine  v.  Rochester,  85  N.  Y.  523. 

That  the  lack  of  power  in  the  fiscal  officer  to  adjust 
and  pay  the  claim,  does   not  excuse   failure   to  present 

it. 

Baine  v.  Rochester,  supra. 
Judson  v.  Olean,  40  Hun,  158. 

CJoYltVCL 

Childs  v.  West  Troy,  23  Hun,  68. 

That  in  Hornellsville  the  chief  fiscal   officer  is  the 
board  of  trustees,  and  not  the  treasurer. 

Gage  r.  Hornellsville,  41  Hun,  87. 

That  plaintiff's  failure  to  get  costs  does  not  give 
costs  to  defendant. 

Baine  v.  Rochester,  supra. 

4.  No  application  in  actions  for  wrongs.  But  all  these, 
and  other  adjudications  upon  this  statute,  are  rendered 
useless  here  in  light  of  the  recent  decision  of  the  court  of 
appeals,  that  the  statute  applies  only  to  actions  upon 
contract. 


176  Practice. 

A  glance  at  some  decisions  upon  this  subject  may  be 
interesting. 

In  Hart  v.  Brooklyn,  38  Barb.  226,  decided  in  1862, 
the  act  of  1859  was  held  to  apply  to  negligence  cases. 

In  McClure  v.  Supervisors  of  Niagara,  3  Abb.  Dec. 
83  (1867),  it  was  held  to  not  so  apply  ;  and  the  court  rely 
upon  the  reasoning  of  Howell  v.  Buffalo,  15  N.  T.  512 
(which,  however,  arose  under  a  special  provision  of  the 
Buffalo  charter),  and  assumes  that  if  the  court  in  decid- 
ing the  McClure  case  had  had  its  attention  called  to  the 
Hart  case,  its  decision  would  have  been  conformed  to  it. 

In  Childs  v.  West  Troy,  23  Hun,  68  (1880),  it  was  also 
held  to  not  apply,  but  the  decision  was  placed  strictly 
upon  the  ground  of  the  inability  of  the  municipal  officers 
to  audit  a  claim  for  a  tort. 

In  Dressel  v.  Kingston,  32  Hun,  526  (1884),  it  was 
decided  by  a  divided  court,  upon  the  supposed  authority 
of  Baine  v.  Bochester,  85  N.  Y.  523,  that  the  claim  in  a 
negligence  case  must  be  presented,  in  order  to  obtain  costs. 

This  was  cited  in  Judson  v.  Olean,  40  Hun,  158,  but 
was  unnecessary  to  the  determination  of  the  case. 

The  same  was  assumed  in  Fisher  v.  Cortland,  25  W. 
Dig.  253. 

In  Taylor  v.  Cohoes,  35  Alb.  L.  J.  357,  the  court  of 
appeals  have  held  directly  that  §  3245  and  the  act  of  1859 
apply  only  to  actions  upon  contract,  and  point  cut  in  the 
opinion  that  the  Baine  case  decided  nothing  to  the  con- 
trary. 


Notice  of  Claim.  177 


B.  New  York  Act  of  188G. 

1.  Statute.  It  is  provided  by  chapter  572  of  the  Laws 
of  1886,  page  501,  section  1,  as  follows: 

"  No  action  against  the  mayor,  aldermen  and  common- 
alty of  any  city  in  this  State,  having  fifty  thousand  inhab- 
itants, or  over,  for  damages  for  personal  injuries  alleged 
to  have  been  sustained  by  reason  of  the  negligence  of 
such  mayor,  aldermen  and  commonalt}T,  or  of  any 
department,  board,  officer,  agent,  or  employee  of  said 
corporation,  shall  be  maintained,  unless  the  same  shall 
be  commenced  within  one  year  after  the  cause  of  action 
therefor  shall  have  accrued,  nor  unless  notice  of  the 
intention  to  commence  such  an  action,  and  of  the  time 
and  place  at  which  the  injuries  were  received,  shall  have 
been  filed  with  the  counsel  to  the  corporation,  or  such 
other  proper  law  officer  thereof,  within  six  months  after 
such  cause  of  action  shall  have  accrued." 

2.  Application.  This  section  in  respect  to  the  presenta- 
tion of  claims  to  the  corporation  attorney,  or  counsel,  is 
in  addition  to  the  notice  required  to  be  served  upon  the 
comptroller  of  the  city,  or  other  officer,  by  charter,  con- 
sidered below  ;  and  the  notice  here  provided  for  should 
probably  not  be  served  until  the  expiration  of  the  term 
of  notice  provided  in  such  charters. 

C.  Under  Charters. 

1.  Introductory.    The  charters  of  many  municipal  cor- 
porations provide  especially  for   the   presentation  of  a 
12 


178  Practice. 

statement  of  the  claim,  sometimes  as   a  condition  prece-( 

dent  to  recovery  at  all ; 

Charter  of  New  York,  2  Laws  1882,  p.  305,  \  1104.  / 
Charter  of  Albany,  Laws  1883,  p.  364,  §  45. 
Charter  of  Troy,  1  Laws  1872,  p.  336,  \  10. 
Charter  of  Buffalo,  2  Laws  1870,  p.  1179,  §  7. 

sometimes  as  affecting  only  the  question  of  costs. 

Charter  of  Utica,  Laws  1862,  p.  76,  §  123. 
Charter  of  Binghamton,  1  Laws  1867,  p.  642,  §  7. 
Charter  of  Auburn,  Laws  1879,  p.  99,  §  140. 

In  the  former  case,  the  statute  sometimes  covers  all 

claims. 

Charter  of  New  York,  supra. 

Sometimes  all  unliquidated  claims. 
Charter  of  Buffalo,  supra. 

Sometimes  all  claims  for  injury  to  person  or  prop- 
erty. 

Charter  of  Troy,  supra. 

Sometimes  claims   arising  from  defective  streets  are 
specified. 

Charter  of  Albany,  supra. 

Charter  of  Oswego,  Laws  1877,  p.  132,  \  15. 

Charter  of  Schenectady,  1  Laws  1882,  p.  359,  §  4. 

Sometimes  the  statement  must  be  verified. 
Charters  of  Albany  and  Troy. 

2.   Application.    Under  different  charters,  these  provi- 
sions have  been  held  to  apply  to  negligence  cases,  in 

Nagel  v.  Buffalo,  34  Hun,  1. 
Duryea  v.  New  York,  26  Hun,  120. 


Notice  of  Ciaim.  179 

and  that  they  do  not,  in 

Quinlan  v.  Utica,  74  N.  T.  603. 

Ponifrey  v.  Saratoga  Springs,  104  N.  Y.  459. 

3.  Construed  prospectively.  Such  statutes  are  to  be  con- 
strued prospectively,  and  do  not  apply  to  cases  where  the 
injury  was  sustained  before  the  law  went  into  effect. 

Williams  v.  Oswego,  25  Hun,  36. 

4.  Buffalo  charter.  Under  the  provision  of  the  Buffalo 
charter,  that  all  claims  growing  out  of  the  water  depart- 
ment should  be  presented  to  the  water-board,  held  that 
this  did  not  include  claims  for  injuries  caused  by  excava- 
tions in  streets  made  by  the  water  department. 

Brusso  v.  Buffalo,  90  N.  Y.  679. 

D.    General  Provisions. 

1.  Introductory.  Irrespective  of  the  particular  statutes 
requiring  the  presentation  of  claims,  various  questions 
arise  as  to  which  adjudications  are  of  more  than  local 
value. 

2.  To  whom  presented.  Must  the  claim  be  presented  to 
the  officer  named,  in  person  ? 

The  answer  to  this  question  must  of  course  depend 
largely  upon  the  words  of  the  statute. 

In  McCabe  v.  Cambridge,  134  Mass.  484,  where  the 
notice  was  required  to  be  served  on  the  city  clerk,  it  was 
held  sufficient  to  serve  it,  in  his  absence,  upon  his  assist- 
ant in  the  city  clerk's  office. 


180  Practice. 

In  New  fork  it  lias  been  held  that  under  a  charter 
providing  for  presentation  to  the  Common  Council,  deliv- 
ery to  its  clerk  was  sufficient. 

Murphy  v.  Buffalo,  22  W.  Dig.  284. 

3.  What  to  present.  The  Troy  charter  provides  that  "  no 
civil  action  shall  be  maintained  against  the  city  by  any 
person  for  injuries  to  person  or  property,  unless  it  appear 
that  the  claim  for  which  the  action  was  brought  was 
presented  to  the  comptroller,  with  an  abstract  of  the  facts 
out  of  which  the  cause  of  action  arose,  duly  verified  by 
the  claimant,  and  that  said  comptroller  did  not,  within 
sixty  days  thereafter,  audit  the  same." 

Laws  1872,  p.  336,  \  10. 

Under  this  it  has  recently  been  held  at  circuit,  in  one 
case,  that  the  original  claim  must  be  presented,  and  not  a 
copy  ;  in  another  case,  the  paper  left  with  the  comptroller 
was  a  copy,  but  the  plaintiff's  attorney  testified  that  he 
presented  the  original  to  the  comptroller  at  the  same 
time  at  which  he  left  the  copy  with  him  ;  and  the  court 
declined  to  hold  the  service  void.  The  latter  case, 
Magee  v.  Troy,  is  now  on  its  way  to  the  general  term. 

4.  Amount  claimed.  It  is  sometimes  important  to  know 
whether  or  not  the  amount  claimed  in  the  notice  regu- 
lates the  amount  for  which  suit  may  be  brought. 

Under  the  Kansas  statute,  similar  to  N.  Y.  Code,  § 
3245,  it  has  been  held  that  the  plaintiff  is  not  deprived  of 
his  costs  because  he  demanded  more  in  the  complaint 
than  was  claimed  in  the  notice. 

Wyandotte  v.  White,  13  Kan.  191. 


Notice  of  Claim.  181 

And  to  the  same  effect  it  has  been  held  in  two  New 
York  cases,  under  charters  making  the  presentation  of  a 
claim  a  pre-requisite  to  recovery. 

Minick  v.  Troy,  83  N.  Y.  514. 
Keed  v.  New  York,  97  N.  Y.  620. 

5.  Contents  of  notice.  What  constitutes  sufficient  notice 
under  a  given  statute  is  a  question  for  the  court. 

Chapman  v.  Nobleboro,  76  Maine,  427. 

The  object  and  general  character  of  the  notice  have 
been  well  defined  as  "  such  precise  information  as  would 
enable  the  officers  to  inquire  into  the  facts  intelligently." 

Shaw  v.  Waterbury,  46  Conn.  263. 

The  following  decisions  upon  this  point  may  be  useful. 

(a)  Place  of  injury.  Only  a  reasonable  degree  of  par- 
ticularity is  required  ; 

Tuttle  v.  Winchester,  50  Conn.  496. 

sufficient  if  place  designated  with  such  certainty  that  it 
can  be  ascertained  by  the  authorities, 

Fopper  v.  Wheatland,  59  Wis.  623. 
Fassett  v.  Roxbury,  56  Vt.  552. 

even  if  in  some  particular  the  location  be  wrong, — 
McCabe  v.  Cambridge,  134  Mass.  484. 

e.  g.t  on  the  wrong  side  of  the  street. 

Cloughessy  v.  Waterbury,  51  Conn.  405. 


182  Practice. 

It  may  be  sufficient : 

When  it  describes  the  place  as  at  the  corner  of  two 
ways,  without  specifying  which  corner. 

Sargent  v.  Lynn,  138  Mass.  599. 

If  it  name  the  house,  street,  and  side  of  street. 
Savory  v.  Haverhill,  132  Mass.,  324. 

If  it  describe  an  obstruction  between  two  given  resi- 
dences, even  though  at  some  distance  apart,  and  others 
were  between  them,  if  there  is  only  one  such  obstruction 
in  that  locality. 

Melendy  v.  Bradford,  56  Vt.  148. 

If  it  describe  a  large  hole  in  a  planking,  though  two 
smaller  ones  near. 

Lyman  v.  Hampshire  Co.,  138  Mass.  74. 

But  was  held  not  sufficient  when  it  described  the  locus 
in  quo  as 

A  "  rough,  hobbly  and  slippery "  sidewalk  between 
two  named  streets,  which  were  200  feet  apart. 

Cronin  v.  Boston,  135  Mass.  110. 

On  north  side  of  street,  when  accident  really  happened 
on  south  side. 

Shallow  v.  Salem,  136  Mass.  136. 

On  a  given  street  which  proved  to  be  two  miles  long. 
Donnelly  v.  Fall  Biver,  130  Mass.  115. 


Notice  of  Cladl  183 

(b)  Time.     Held  sufficient: 

Naming  day,  unless  time  of  day  important. 

Donnelly  v.  Fall  River,  132  Mass.  294. 
Savory  v.  Haverhill,  Id.  324. 

"Christmas  morning." 

Taylor  v.  Worcester,  130  Mass.  494. 

Day  held  not  sufficient. 

White  r.  Stowe,  54  Vt.  510. 

(c)  Cause.  It  has  been  held  sufficient  to  state  that 
the  fall  was  "  consequent  upon  the  icy  and  slippery  con- 
dition of  the  said  sidewalk." 

Dalton  v.  Salem,  136  Mass.  278. 

That  the  claimant  was  "  thrown  into  a  ditch." 
Bailey  v.  Everett,  132  Mass.  441. 

But  not  euough  to  state  the  cause  simply  as  the  "  de- 
fective and  dangerous  condition  of  the  way,"  or  an  ob- 
struction in  the   way,  without  specifying  the  particular 

danger. 

Nourse  v.  Victory,  51  Vt.  275. 
Noonan  v.  Lawrence,  130  Mass.  161. 
Roberts  v.  Douglass,  (Mass.)  2  East.  R.  114. 

It  has  been  held  that  a  notice  of  injury  by  an  iron 
grating  will  not  cover  a  fall  on  ice. 

McDougal  v.  Boston,  134  Mass.  149. 

But  the  court  declined  to  rule  as  matter  of  law  that 
a  notice  of  injury  caused  by  "  the  improper  grading  of  the 


184  Practice. 

said  road  and  the  want  of  proper  railing  by  the  side  of 
said  road,"  did  not  embrace  an  improper  declivity  of  a 
gutter  at  the  road  side. 

Spooner  v.  Freetown,  139  Mass.  235. 

It  is  enough  if  it  states  the  proximate  cause. 

Grogan  v.  Worcester,  (Mass.)  2  East.  E.  735. 

(d)  Nature  of  injury.  It  has  been  held  that  a  notice 
stating  that  the  claimant  was  "  violently  shaken  up  and 
jarred  in  his  fall  to  the  ground,"  permits  proof  of  all  the 
injuries  sustained. 

Wadleigh  v.  Mt.  Vernon,  75  Me.  79. 

That  "  injury  to  spine  near  shoulders  "  covers  injury 
to  spine  between  the  shoulder  blades. 

Fassett  v.  Roxbury,  55  Vt.  552. 

But  that  simply  mentioning  "  injuries  that  I  sustained  " 
is  not  enough. 

Low  v.  Windham,  75  Me.  113. 


CHAPTER  III. 

PLEADINGS. 

A.  The  Complaint. 

1.  Code  requisites. 

2.  Particular  requisites. 

3.  Adjudications. 

B.  The  Answeb. 

A.  The  Complaint. 

1.  Code  requisites.  The  New  York  Code  prescribes  the 
general  requisites  of  a  complaint  as  : 

(1)  Title  of  cause,  and  if  in  supreme  court,  name  of 
county. 

(2)  Names  of  parties. 

(3)  "A  plain  and  concise  statement  of  the  facts  con- 
stituting each  cause  of  action,  without  unnecessary  repe- 
tition." 

(4)  Demand  of  judgment. 

It  is  with  a  view  to  this  system  of  pleading  only  that 
the  following  suggestions  are  given  as  to  the  prepara- 
tion of  a  complaint  against  a  municipal  corporation  for 

neglige  n  ce  -inj  urie  s. 

[185] 


186  Practice. 

2.  Particular  requisites.  What  are  the  "  facts  constitut- 
ing a  cause  of  action  "  ? 

It  is  believed  that  the  following  list  embraces  all  the 
usual  requisites,  and  possibly  also  some  which  are  un- 
necessary.    It  is  believed  to  outline  a  safe  pleading. 

(a)  State  character  of  defendant ;  that  it  is  a  domestic 
municipal  corporation. 

(b)  Its  duty,  statutory  or  otherwise,  to  keep  its  streets 
reasonably  safe  for  travel. 

(c)  That  the  place  of  injury  was  a  street  of  the  city. 

(d)  The  location. 

(e)  The  defect  or  obstruction. 

(f)  Notice  thereof  to  the  defendant. 

(g)  The  negligence  of  the  defendant, 
(h)  The  care  of  the  plaintiff. 

(i)  The  injury. 

(j)  The  damage. 

(k)  The  presentation  of  notice  under  charter,  with  fail- 
ure to  audit,  and  expiration  of  time. 

(1)  Notice  to  law-officer  under  act  of  1886. 

In  case  the  action  is  brought  by  a  personal  represen- 
tative, add  also  : 

(m)  The  fact  of  death. 

(n)  The  authority  of  plaintiff  to  sue. 

(o)  The  survival  of  beneficiaries. 


Pleadings.  187 

If  brought  for  loss  of  services  of  wife  or  child,  add 
proper  allegations  for  such  purposes. 

If  brought  for  an  infant  by  its  guardian  ad  litem,  allege 
appointment  and  qualification. 

3.  Adjudications.  With  regard  to  some  of  the  above, 
certain  decisions  may  be  noted. 

(a)  The  complaint  must  allege  negligence  of  the  de- 
fendant. 

Rushville  v.  Poe,  85  Ind.  83. 

(b)  Also  notice  of  defect,  actual  or  constructive. 

Noble  v.  Richmond,  31  Gratt.  (Va.)  271. 

Demurrable  if  not  alleged. 

Spiceland  v.  Alier,  96  Ind.  467. 

(c)  It  is  usually  held  that  the  absence  of  contributory 
negligence  need  not  be  pleaded. 

Wolfe  v.  Supervisors   of  Richmond  Co.,  19  How. 

Pr.  370. 
Urquhart  v.  Ogdensburgb,  23  Hun,  75. 
Lee  v.  Troy  City  Gas-Light  Co.,  98  N.  Y.  115. 
Street  R.R.  Co.  v.  Noltbenius,  40  Ohio  St.  376. 
Lopez  v.  Cent.  Ariz.  Mfg.  Co.,  1  Ariz.  4S4. 
Holt  v.  Whatley,  51  Ala.  569. 
Texas,  &c.  R.  R.  Co.  v.  Murphy,  47  Tex.  356. 
Bedford,  &c.  R.  R.  Co.  v.  Rainbolt,  99  Ind.  561. 

(d)  As  to  the  nature  of  the  injury  it  is  competent  to 
prove  permanent  disease  of  the  spine  under  an  allegation 
of  "  great  bodily  injury." 

Ehrgott  v.  New  York,  96  N.  Y.  264. 


188  Practice. 

(e)  Damages.  All  damages  which  are  the  direct  result 
of  the  injury  may  be  recovered  under  a  general  averment. 

Cabot  v.  Kane,  1  N.  Y.  St.  B.  495. 

If  a  father  would  prove  special  damage  until  the 
majority  of  his  infant  son  he  must  allege  it. 

Gilligan  v.  N,  Y.  &  H.  E.  R.  Co.,  1  E.  D.  S.  453. 

Complaint  alleging  general  inability  to  pursue  lawful 
business  admits  proof  of  nature  of  business  and  wages, 
and  damages  from  interruption. 

Luck  v.  Ripon,  52  Wis.  196. 
Bloomington  v.  Chamberlain,  104  111.  268. 


(f)  Place  of  injury.     Allegation  of  excavation  "  in  and 
on"  an  alley,  sustained  by  proof  that  it  was  adjacent  to 

the  alley. 

Niblett  v.  Nashville,  12  Heisk.  (Tenn.)  684. 

(g)  Presenting  claim.  When  a  statute  makes  notice 
pre-requisite  to  action  against  a  city,  it  must  be  pleaded. 

Wentworth  v.  Summit,  60  Wis.  281. 
Dorsey  v.  Racine,  Id.  292. 
Reining  v.  Buffalo,  102  N.  Y.  308. 

Overruling 

Nagel  v.  Buffalo,  34  Hun,  1. 

The  charter  of  New  York  city  provides  that  "  no  action 
.  .  .  shall  be  prosecuted  or  maintained,  unless  it  shall 
appear  by  and  as  an  allegation  ...  in  the  complaint, 
.     .     .     that  at  least  thirty  days  have  elapsed  since  the 


Pleadings.  189 

claim     .     .     .     upon  which  said  action     ...    is  founded 
were  presented  to  the  comptroller,  &c." 

2  Laws  1883,  p.  305,  \  1104. 

That  of  Troy  provides  that  "  no  civil  action  shall  be 
maintained,  unless  it  appears  that  the  claim  was  pre- 
sented," &c.  (1  Laws  1872,  p.  33G,  §  10),  and  the  proof  to 
make  it  appear,  of  course,  requires  an  allegation  in  the 
pleading. 

B.    The  Answer. 

The  legal  advisers  of  municipal  corporations  usually 
employ  stereotyped  forms  of  answer,  in  which  nearly 
every  allegation  of  the  complaint  is  put  in  issue  and  con- 
tributory negligence  set  up  as  an  affirmative  defense. 

Examples  of  these  answers  will  be  found,  with  other 
forms,  in  an  Appendix. 


CHAPTER  IV. 


SELECTION  OF  JURORS. 

1.  Introductory. 

2.  Inhabitants  incompetent  at  common  law. 

3.  Statutes. 

4.  Rejection  of  competent  juror. 

1.  Introductory.  An  interesting  question  has  arisen  in 
respect  to  the  competency  of  the  residents  of  a  municipal 
corporation  bo  sit  as  jurors  in  an  action  in  which  the  city 
or  village  is  interested. 

On  the  one  hand,  it  is  evident  that  such  persons  are 
interested,  for  their  eligibility  to  do  jury  duty  at  all 
depends  upon  a  property  qualification  ;  and  a  judgment 
against  a  municipal  corporation  is  a  charge  in  some 
degree  upon  every  property  owner  within  it. 

On  the  other  hand,  in  New  York,  where  city  and 
county  are  co-extensive,  no  jury  could  be  empanelled 
under  existing  laws,  for  the  trial  of  such  an  action. 

2.  Incompetent  at  common  law.  In  Diveny  v.  Elmira,  51 
N.  Y.  506,  the  question  presented  was  the  direct  one  :  "Is 
a  resident  and  tax-payer  of  the  defendant  corporation 
incompetent  as  a  juror?"     And  it  was  held  that,  in  ab- 

[190 


JUEORS.  191 

sence  of  a  statute  to  the  contrary,  they  were  incompetent. 
The  court  say  :  "  The  object  of  the  law  is  to  procure 
impartial,  unbiased  persons  for  jurors.  Omni  exceptione 
majores.  They  must  have  no  interest  in  the  subject 
matter  of  the  litigation.  In  this  case  a  verdict  against 
the  city  would  impose  additional  burdens  upon  all  tax- 
paying  residents  thereof.  Hence  such  residents  are,  at 
common  law,  incompetent  to  serve  as  jurors  in  a  case 
in  which  the  city  is  a  party,  or  in  which  the  city  is 
directly  interested." 

3.  Statutes.  As  to  some  municipalities  it  is  specially 
provided  by  statute  that  residents  and  tax-payers  shall 
not  for  that  reason  be  incompetent  as  jurors  in  city 
cases. 

The  Troy  statute  is  an  example. 
Laws  1816,  ch.  1,  \  16. 

4.  Rejection  of  competent  juror.  The  rejection  of  a  compe- 
tent juror  is  a  ground  of  error,  although  the  jurors  who  actually 
try  the  case  are  competent. 

Hildreth  v.  Troy,  101  N.  Y.  234. 

Upon  the  trial  of  this  cause  twelve  persons  drawn  as 
jurors  were  rejected  upon  the  ground  that  as  residents  of 
the  city  they  were  interested  in  the  result  of  the  action ; 
the  court  and  plaintiff's  counsel  not  probably  recalling 
the  statute  above  cited.  This  was  held  error  by  both  the 
higher  courts. 

The  cases  relied  upon  by  plaintiff  were  : 


192  Practice. 

Tweed  v.  Davis,  1  Hun,  252. 

People  v.  Jewett,  3  Wend.  314. 

Mullen  v.  Decker,  19  W.  Dig.  426. 

Grand  Eapids,  &c.  Co.  v.  Jarvis,  30  Mich.  308. 

The  language  relied  on  in  Tweed  v.  Davis  was  that  of 
Mr.  Justice  Westbrook  only,  contained  in  his  separate 
opinion.  Two  jurors  had  been  rejected  on  the  ground  of 
incompetency,  and  their  incompetency  was  conceded  by 
all  the  court.  But  Mr.  Justice  "Westbrook  adds  :  "  So  long 
as  the  defendant  was  tried  by  twelve  others  who  were 
competent,  we  do  not  see  that  the  rejection  of  these  two, 
conceding  their  competency,  could  in  any  way  prejudice 
him  [the  appellant]." 

The  case  of  People  v.  Jewett  was  not  less  celebrated 
in  its  day  than  the  Tweed  case,  it  being  the  trial  of  the 
alleged  murderer  of  the  Freemason,  William  Morgan. 

In  that  case,  in  selecting  the  grand  jury,  all  Free- 
masons were  excluded,  and  the  court  held  that  a  challenge 
to  the  array  would  not  be  allowed  upon  that  ground,  if 
the  jurors  returned  were  unexceptionable  and  possessed 
the  statutory  qualifications. 


CHAPTER    V. 

THE  PLAINTIFF'S   CASE. 

1.  Introductory. 

2.  Incorporation. 

3.  Duty  as  to  streets. 

4.  Presentation  of  notices. 

5.  Locus  in  quo. 

6.  The  defect  or  obstruction. 

7.  The  injury. 

8.  Burden  of  proof  of  negligence. 

9.  Notice. 

10.  Contributory  neghgence. 

11.  Damages. 

The  three  subjects  last  named  will  be  considered  in  separate  chapters. 

1.  Introductory.  The  burden  is,  speaking  generally,  upon 
the  plaintiff  to  establish  all  the  allegations  of  the  complaint,  so 
far  as  they  are  not  admitted  by  the  ansicer. 

It  is  purposed  to  consider  briefly  each  of  these  requi- 
sites. 


2.  Incorporation.    The  incorporation  of  the  city  is  usu- 
ally admitted   by  the   answer.     If  not,  it   need   not  be 
proven,  unless  it  be  denied  by  a  verified  answer. 
Code  Civ.  Pro.  \  1776. 

The  introduction  of  the  charter  is  sufficient  proof. 
13  [193] 


194  Practice. 

3.  Duty  as  to  streets.  This,  being  statutory,  may  be 
proven  by  introducing  the  charter  or  act  under  which  the 
city  or  village  was  incorporated,  and  especially  those 
parts  in  which  that  subject  is  particularly  provided 
for, — whether  it  be  a  direct  provision  or  one  making  the 
common  council  commissioners  of  highways. 

Ellis  v.  Lowville,  7  Lans.  434. 

This  duty  is  not  increased  by  the  passage  of  an  ordi- 
nance requiring  owners  to  remove  snow  and  ice  from  in 
front  of  their  property. 

Stanton  v.  Springfield,  12  Allen,  566. 

Nor  by  the  neglect  to  enforce  such  ordinances. 

Stillwell  v.  New   York,  49  N.  Y.  Super.  (17  J.  & 
S.)  360. 


4.  Presentation  of  claim  and  of  notice  to  law-officer.  The 
service  of  notices,  wherever  required  either  by  charter  or 
general  statute,  might  well  be  and  often  is  admitted, 
since  the  original  paper  is  in  the  possession  of  city 
officers. 

Where,  however,  it  is  not  admitted,  its  production 
may  be  compelled  by  notice  to  produce,  or  by  subpoena 
duces  tecum,  or  in  failure  thereof,  proof  may  be  made  by 
producing  a   copy  with  oral  evidence  of  the  original. 


5.  The  locus  in  quo,  and  that  it  was  a  street.    That  the 
locality  of  the  accident  was  on  a  street,  so  as  to  charge 


The  Plaintiff's  Case.  195 

the  municipality  with  its  care,  may,  if  disputed,  be  one 
of  the  most  difficult  questions  in  the  case. 

Where  the  street  was  designated  as  such  in  the  char- 
ter, or  was  established  by  statutory  proceeding,  or 
declared  such  by  statutory  prescription,  the  matter  of 
proof  is  of  course  easy.  In  the  first  case,  it  is  necessary 
only  to  produce  the  charter  ;  in  the  second,  to  prove  the 
proceeding  under  the  statute  ;  in  the  third,  to  show  user 
for  the  requisite  time.  The  proof  of  user  is  not  always 
wholly  without  difficulty,  but  it  is  in  theory  simple. 

In  case  it  is  sought  to  prove  the  existence  of  a  street 
by  dedication,  the  proof  is  more  complex.  Here  the 
intent  to  dedicate  by  the  owner  of  the  fee  must  be 
shown,  and,  independently  of  that,  the  acceptance  by  the 
public. 

Part  L,  chap.  TV.  B,  contains  suggestions  that  may  be 
useful  in  this  connection. 

In  addition  to  what  is  there  said,  it  may  be  added 
that  where,  by  reason  of  the  newness  of  streets,  or  other- 
wise, the  question  of  acceptance  by  the  city  is  in  doubt, 
it  is  sometimes  possible  to  show  that  a  given  map,  con- 
taining the  street,  has  been  made  or  accepted  by  the 
city. 

If  the  acceptance  of  the  map  be  actual,  it  may  be 
shown  by  the  record  of  the  proceedings  of  the  common 
council ;  but  it  may  be  inferred  from  actions,  as  by  the 
city  using  or  distributing  copies  of  the  map. 

So  again,  implied  acceptance  may  sometimes  be  shown 
by  proving  that  work  had  been  done  or  ordered  by  the 


196  Peactice. 

city  upon  the  street, — such  as  the  maintaining  street 
lamps,  hydrants,  &c.  Here  again  the  minutes  of  the 
common  council  may  come  in  play. 

To  obtain  the  minutes,  if  they  are  printed  under  the 
certificate  of  the  clerk  that  such  printing  was  done  by 
direction  of  the  common  council,  such  printed  volumes 
may  be  put  in  evidence.  Otherwise,  the  city  clerk  may 
be  subpoenaed  to  produce  the  original  record. 

If  there  is  any  evidence  that  the  place  was  a  public 
street,  the  plaintiff  is  entitled  to  go  to  the  jury  upon  that 
question 

Tierney  v.  Troy,  41  Hun,  120. 

It  should  also  be  remembered  that  a  way  may  be 
treated  as  a  street  by  a  city,  and  so  become  such  so  far 
as  to  charge  the  city  with  liability,  though  otherwise  not 
a  street. 

See  Part  I.,  chap.  V.,  B,  3. 

6.  The  defect  or  obstruction.  The  existence  of  the  con- 
dition which  is  claimed  to  be  dangerous,  and  which 
caused  the  plaintiff's  injury,  must,  of  course,  be  proven 
by  persons  who  knew  of  it. 

"Where  one  person  testifies  that  he  pointed  to 
another  the  place  where  the  accident  occurred,  it  is  com- 
petent for  the  other  to  testify  as  to  the  condition  of  the 
street  before  and  at  the  time  of  the  accident,  although  he 
was  not  then  present. 

Hirsch  v.  Buffalo,  21  W.  Dig.  312. 


The  Plaintiff's  Case.  107 

Whether  or  not  a  given  object  constitutes  an 
obstruction,  or  a  street  is  defective,  is  a  question  ordina- 
rily for  the  jury  to  determine. 

For  the  purpose  of  proving  the  existence  of  the 
defect,  it  is  competent  : 

To  show  the  condition  of  the  street  the  day  after  the 

injury. 

De  Forest  v.  Utica,  69  N.  Y.  614. 

Albilene  v.  Hendricks,  (Kan.)  13  Pac.  R.  121. 

That  it  was  in  the  same  condition  a  few  days  before 
and  after  the  accident. 

Chicago  r.  Dalle,  115  111.  386. 

That  it  was  in  the  same  condition  ten  days  after,  there 
being  no  evidence  of  change. 

Berrenberg  v.  Boston,  137  Mass.  231. 

But  that  the  city  authorities  have  improved  the  con- 
dition of  a  sidewalk  since  the  injury  to  the   plaintiff,  is 
not  an  admission  that  it  was  previously  defective. 
Cramer  r.  Burlington,  45  Iowa,  627. 

Nor,  in  New  York,  is  it  competent  evidence. 

Dougan  v.  Cbamplain  Trans.  Co.,  56  N.  Y.  1. 
Payne  v.  T.  &  B.  R.  R.  Co.,  9  Hun,  526. 
Morrell  r.  Peck,  24  Hun,  38. 
Moore  v.   Birdsall,    22   W.   Dig.    530. 

Contra  in  Kansas. 

Emporia  r.  Schmidling,  33  Kan.  485. 

It  is  incompetent  to  prove  that  other  sidewalks  in  the 
neighborhood  were  generally  out  of  repair. 
Ruggles  v.  Nevada,  63  Iowa,  185. 


198  Practice. 

But  if  a  sidewalk  is  unsafe  for  a  long  distance  contin- 
uously, it  may  all  be  shown,  though  the  accident  was  at 

one  end. 

Armstrong  v.  Ackley,  (Iowa)  32  No.  W.  E.  180. 

7.  The  injury.  This  must  be  proven,  as  to  the  acci- 
dent itself,  by  the  plaintiff  or  others  who  were  present ; 
as  to  the  extent  of  the  injury,  by  the  plaintiff  and  others 
who  attended  him,  including  physicians.  The  evidence 
bearing  upon  this  point  will  be  considered  in  connection 
with  the  subject  of  damages. 

There  must  be  positive  proof  that  the  injury  was  the 
direct  result  of  the  defect. 

Monohan  v.  Cohoes,  8  W.  Dig.  528. 

The  plaintiff  has  the  right  to  prove  the  res  gestce. 

Hallahan  v.  N.  Y.,  L.  E.  &  W.  Ey  Co.,  102  N.  T.  194 

But  declarations  of  the  injured  person  after  his  injury 
and  while  being  taken  away,  as  to  how  it  happened  (the 
injury  resulting  in  his  death),  are  not  competent. 

Martin  v.  N.  Y.,  &c.  E.  E.  Co.,  25  W.  Dig.  197. 

8.  Burden  of  proof  of  negligence.  The  burden  of  proving 
the  negligence  of  the  defendant  is  on  the  plaintiff. 

Cordell  v.  New  York  Central,  &c.  E.  E.  Co.,  75  N. 

Y.  330. 
Hale  v.  Smith,  78  N.  Y.  480. 
Freeh  v.  Phila.,  &c.  E.  E.  Co.,  39  Md.  574. 
Wardwell  v.  New  York,  1  N.  Y.  St.  E.  784. 
Merrill  v.  North  Yarmouth,  (Me.)  4  E.  E.  936. 

It  will  not  be  inferred  from  the  mere  fact  of  the  acci- 
dent. 

Baltimore  El.  Co.  v.  Neal,  (Md.)  5  Atl.  E.  338. 


The  Plaintiff's  Case.  199 

The  plaintiff  is  not,  however,  bound  to  prove  negli- 
gence beyond  a  reasonable  doubt. 

Seybolt  v.  N.  Y.,  L.  E.  &c.  R.  R.  Co.,  95  N.  Y.  562. 
Wiedmer  v.  N.  Y.  El.  R.  Co.,  41  Hun,  284. 

It  may  be  proved  by  circumstances. 

Hartr.  Hudson  R.  Br.  Co.,  80  N.  Y.  622. 

For    the    purpose    of    establishing    negligence,    the 
absence  of  gas  or  light  may  be  considered. 

Indianapolis  v.  Scott,  72  Ind.  196. 
O'Hagan  v,  Dillon,  76  N.  Y.  170- 


CHAPTER  VL 

NOTICE. 


A.  Acttjaij  Notice. 

1.  Evidence  competent. 

2.  Evidence  not  competent. 

B.  CONSTRUCTIVE    NOTICE. 

1.  Eule. 

2.  Notoriety. 

3.  Length  of  time. 

4.  Weather  records. 

5.  Other  accidents. 

6.  Ordinances. 


A.    Actual  Notice. 

1.  Evidence  held  competent.  For  the  purpose  of  charg- 
ing a  city  with  actual  notice  of  an  obstruction  or  defect, 
the  following  evidence  has  been  held  competent : 

(a)  That  a  councilman  had  notice  of  it. 

Logansport  v.  Justice,  74  Ind.  378. 

(b)  Or  a  highway  surveyor  of  a  New  England  town. 

Rogers  v.  Shirley,  74  Me.  144. 

(c)  That  the   street  commissioners  knew  the  whole 

[200] 


Actual  Notice.  201 

sidewalk  was  old,  rotten  and  unsafe,  though  ignorant  of 
the  looseness  of  the  particular  plank  causing  the  injury. 

Ripon  v.  Bettel,  30  Wis.  614. 

(d)  That  a  street  commissioner  was  informed  of  the 
defect — coupled  with  the  presumption  that  he  performed 
his  duty  of  inquiring,  after  such  information. 

Welch  v.  Portland,  77  Me.  384. 

(e)  A  book  kept  at  the  office  of  the  city  messenger, 
containing  complaint  of  the  condition  of  the  street. 

Blake  v.  Lowell,  (Mass.)  9  No.  East.  R.  627. 

(f)  The  report  of  a  street  commissioner  that  a  street 
was  unsafe. 

Bond  v.  Biddeford,  75  Me.  538. 

(g)  Resolution  of  city  council  directing  repairs  of  a 
sidewalk. 

Erd  v.  St.  Paul,  22  Minn.  443. 
Aurora  v.  Pennington,  92  111.  564. 


2.  Evidence  not  competent.    On  the  other  hand,   proof 

of  repair  after  the  accident  is  not   competent  to  prove 

notice. 

Morse  v.  Minn.  &  St.  L.  P..  R.  Co.,  (Minn.)  28  A. 
L.  J.  320. 

Nor  is  notice  to  a  policeman,  unless  he  be  an  agent  or 
servant  of  the  city  ;  and  he  is  not  so  in  Troy. 

Kunz  v.  Troy,  36  Hun,  615. 

[Rev.  5  N.  Y.St.  R.  642,  but  on  other  points.] 


202  Practice. 

Nor  in  Buffalo. 

McKay  v.  Buffalo,  9  Hun,  401 ;  74  N.  Y.  619. 

But  is  in  New  York. 

Kehberg  v.  New  York,  91  N.  Y.  137. 
Twogood  v.  New  York,  102  N.  Y.  216. 

[For  other  cases  on  this  point,  see  page  120,  ante. 

B.  Constructive  Notice. 

1.  Rule.  Constructive  notice  is  proven  by  showing  that  the 
defect  or  obstruction  causing  the  injury  had  existed  so  long  and 
under  such  circumstances  before  the  injury  that  the  agents  of 
the  city  actually  kneiv,  or,  in  the  exercise  of  reasonable  dili- 
gence, should  have  known  it. 

2.  Notoriety.  This  inference  of  notice  may  be  derived 
from  its  notoriety, — the  knowledge  of  many  citizens  being 
strong  evidence  of  notice  to  the  city. 

Bill  v.  Norrick,  39  Conn.  222. 

And  notoriety  may  be  shown  by  any  witness  cognizant 
of  the   defect ;    residents  of  the  place  or  locality  are  not 

necessary. 

Varnham  v.  Council  Bluffs,  52  Iowa,  698. 

For  the  purpose  of  showing  notoriety,  it  is  competent 
to  prove  who  passed  along  the  street,  how  frequently, 
and  how  employed ;  and  to  that  end  it  was  held  not 
incompetent  to  admit  evidence  of  the  patrolling  of  a 
street  by  police. 

Kinney  v.  Troy,  38  Hun,  285. 


CONSTBUCTIVE    NOTICE.  203 

3.  Length  of  time.  The  length  of  time  the  defect  had 
existed  before  the  injury  is  always  important,  and  may  be 
shown  by  parol  evidence,  and  by  photographs,  measure- 
ments and  models. 

Quinlan  v.  Utica,  11  Hun,  217;   74  N.  Y.  603. 

In  practice,  especially  in  icy-sidewalk  cases,  the  con- 
tinuous icy  condition  for  such  a  time  as  to  charge  the 
city  with  constructive  negligence  is  hard  to  prove,  and 
also  hard  to  rebut. 

In  such  cases,  where  the  condition  is  apt  to  be  con- 
stantly changing  by  variations  of  temperature,  great  care 
must  be  taken  to  show,  as  nearly  as  may  be,  a  continuous 
icy  condition  for  as  long  a  time  as  possible  before  the 
injury. 

And  it  is  proper  to  reject  evidence  of  such  condition 
at  any  particular  time, — for  example,  a  week  before, — 
unless  it  is  shown  to  have  continued. 

Woodcock  v.  Worcester,  138  Mass.  268. 


4.  Weather  records.  The  condition  of  the  weather  pre- 
ceding the  injury  is  often  important,  for  the  purpose  of 
determining  the  probable  continuous  existence  of  the 
ice  ;  and  this  is  conveniently  and  frequently  shown  by 
the  record  of  persons  employed  to  take  meteorological 
observations  by  the  United  States  signal  service. 

These  were  declared  competent  evidence,  and  reasons 
given  therefor  in 

Evanston  v.  Gunn,  99  U.  S.  660. 


204  Practice. 

5.  Other  accidents.     One  way  of  establishing  the  fact  of 

continuous  obstruction  is,  by   proving  that  others  had 

fallen  or  sustained  injury  at  the  same  place,  and  prior  to 

the  injury  in  suit. 

Burns  v.  Schenectady,  24  Hun,  10. 

Avery  v.  Syracuse,  29  Hun.  537. 

Champlin  v.  Penn  Yan,  34  Hun,  33. 

Quinlan  v.  Utica,  11  Hun,  217  ;  74  N.  Y.  603. 

Dist.  Col.  v.  Armes,  107  U.  S.  519. 

Delphi  v.  Lowery,  74  Ind.  520. 

Smith  v.  Sherwood,  (Mich.)  34  A.  L.  J.  119. 

Chicago  v.  Powers,  42  111.  169. 

Augusta  v.  Hafers,  61  Ga.  48. 

Darling  v.  Westmoreland,  52  N.  H.  401. 

Kent  v.  Lincoln,  32  Vt.  591. 

Yet  such  fact  alone  does  not  establish  that  the  ob- 
struction was  actionable. 

Dubois  v.  Kingston,  102  N.  Y.,  219. 

In  O'Hagan  v.  Dillon,  76  N.  Y.  170,  where  evidence  of 
the  recovery  of  a  judgment  for  another  injury  at  the 
same  place  was  rejected,  there  was  no  issue  of  notice,  the 
action  being  against  the  persons  who  caused  the  obstruc- 
tion. 

6.  Ordinances.  The  existence  of  an  ordinance  direct- 
ing how  vault-covers  shall  be  placed,  held  not  evidence 
of  knowledge  on  the  part  of  city,  that  if  the  provisions  of 
the  ordinance  were  not  observed,  there  would  be  danger 
of  slipping  on  the  vault-covers. 

Stillwell  v.  New  York,  49  Super.  360. 

Nor  is  a  city  responsible  for  the  failure  of  household- 
ers to  obey  its  ordinances. 

Taylor  v.  Yonkers,  26  W.  Dig.  376. 


CHAPTER  VII. 

CONTRIBUTORY  NEGLIGENCE. 

1.  Burden  on  plaintiff. 

2.  Rule  in  many  States. 

3.  New  York  rule. 

4.  Circumstances. 

5.  Evidence  necessary. 

6.  Wrongful  act. 

1.  Burden  on  plaintiff.  It  seems  to  be  the  almost  uni- 
versally recognized  rule  in  this  State  that  in  negligence 
cases  the  proof  of  absence  of  contributory  negligence  is 
essential  to  the  plaintiffs  recovery. 

Riceman  v.  Havemeyer,  84  N.  Y.  647. 

Hale  v.  Smith,  78  N.  Y.  480. 

Lehman  v.  Brooklyn,  29  Barb.  234. 

Delafield  r.  Union  Ferry  Co.,  10  Bosw.  216. 

Cordell  v.  N.  Y.  0.,  &c.  R.  R.  Co.,  75  N.  Y.  330. 

Hart  v.  Hudson  R.  Br.  Co.,  80  N.  Y.  622. 

Glendening  v.  Sharp,  22  Hun,  78. 

Kenney  v.  N.  Y.  &  Manhattan  Beach  R.  R.  Co.,  13 

W.  Dig.  61. 
Halpin  v.  Third  Ave.  R.  R.  Co.,  40  Super.  175. 
McMahon  v.  N.  Y.  El.  R.  R.  Co.,  50  Super.  507. 
Schindler  v.  N.  Y.,  L.  E.  &  W.  R.  R.  Co.,  1  N.  Y. 

St.  R.  289. 
Warner  r.  N.  Y.  C.  R.  R.  Co.,  44  N.  Y.  465. 
Hoag  v.  N.  Y.  C,  &c.  R.  R.  Co.,  21  W.  Dig.  506. 

[205] 


206  Practice. 

And  the  same  rule  applies  in  Maine, 

Benson  v.  Titcomb,  72  Me.  31. 

Merrill  v.  North  Yarmouth,  3  Atl.  R.  575. 

and  in  Vermont, 

Bovee  v.  Danville,  53  Vt.  183. 


Michigan, 

Mich.  Cent.  R.  R.  Co.  v.  Coleman,  28  Mich.  440. 


and  Massachusetts. 

Mayo  v.  Boston,  &c.  R.  R.,  104  Mass.  137. 


2.  Rule  in  many  States.  A  different  rule  seems  to  be 
adopted  in  many  States,  and  in  the  United  States  courts, 
namely  :  that  the  burden  of  proving  contributory  negli- 
gence is  upon  the  party  charging  it ;  and  there  can  be  no 
nonsuit  upon  that  ground  unless  the  plaintiffs  case  dis- 
closes such  negligence. 

Hobson  v.  New  Mexico,  &c.  Ry.  Co.,  (Arizona)  11 

Pac.  R.  545. 
McDougall  v.  Cent.  P.  R.  R.Co.,  63  Cal.  431. 
Sanders  v,  Reister,  1  Dakota  Ter.  151. 
Cincinnati,   &c.   R.  R.  Co.   v.  Batler,  (Indiana)  2 

No.  East.  Rep.  138. 
Freeh   v.  Philadelphia,  &c.  R.  R.  Co.,  39  Md.  574. 
County  Com'rs  v.  Burgess,  (Md  )  30  Alb.  L.  J.  79. 
Hocum  v.  Weitherick,  22  Minn.  152. 
Buesching  v.  St.  Louis  Gaslight  Co.,  73  Mo.  219. 
Lincoln  v.  Walker,  (Nebraska)  30  Alb.  L.  J.  406. 
Penn.  Canal  Co.  v.  Bentley,  66  Pa.  St.  30. 
Cleveland,  &c.  R.  R.  Co.  v.  Rowan,  Id.  393. 
Dallas,  &c.  Ry.  Co.  v.  Spicker,  61  Tex.  427. 
Hoyt  v.  Hudson,  41  Wis.  104. 
R.  R.  Co.  v.  Gladmon,  15  Wall.  401. 


Contributory  Negligence.  207 

The  same  doctrine  was  held  in  New  York,  in 

Robinson  r.  New   York   Central,  &c.  R.  R.  Co.,  65 
Rarb.  140. 

Affirmed,  66  N.  Y.  11 ;  but  without  passing  upon  this 
point,  and  in  no  other  case. 

(See  Article,  20  Alb.  L.  J.  304,  discussing  the  rule 
in  different  States.) 

3.  The  New  York  rule,  as  stated  above,  is  modified  in 
its  application,  into  a  rule  which  involves  a  somewhat 
metaphysical  distinction,  and  is  well  stated  in  the  head- 
note  to  Button  v.  Hudson  Kiver  R.  R.  Co.,  18  N.  Y.  248. 

"In  an  action  for  negligence,  the  burden  is  tipon  tJu  plaint- 
iff to  W0™  affirmatively  that  he  is  guiltless  of  any  negligence 
proximately  contributing  to  the  injury.  Such  negligence  is  not 
to  be  presumed,  and  therefore  direct  evidence  to  disprove  it  is 
not  required  from  the  plaintiff' in  the  first  instance  ;  but  where 
there  is  conflicting  testimony  as  to  the  facts,  the  preponderance 
must  be  with  the  plaintiff,  to  enable  him  to  recover." 

In  that  case  the  court  say  :  "  It  must  not  be  understood 
that  it  was  incumbent  on  the  plaintiff,  in  the  first  in- 
stance, to  give  evidence  for  the  direct  and  special  object 
of  establishing  the  observance  of  due  care  by  the  intes- 
tate ;  it  would  be  enough  if  the  proof  introduced  of  the 
negligence  of  the  defendants  and  the  circumstances  of  the 
injury,  prima  facie,  established  that  the  injury  was  occa- 
sioned by  the  negligence  of  the  defendants  ;  as  such  evi- 
dence would  exclude  the  idea  of  a  want  of  due  care  by 
the  intestate  aiding  to  the  result.  .  .  .  The  fact  must 
appear  in  same   way,  but  in   what  particular   mode,  is 


208  Practice. 

unimportant.     The  evidence  of  it  may  be  direct  and  posi- 
tive, or  only  circumstantial." 

4.  Circumstances.  Other  cases  holding  that  the  absence 
of  contributory  negligence  may  be  inferred  from  circum- 
stances, are  the  following  : 

Nowell  v.  New  York,  52  Super.  382. 
Fitzgerald  v.  Binghamton,  40  Hun,  332. 
Johnson  v.  H.  R.  E.  R.  Co.,  20  N.  Y.  65. 
Smedis  v.  B.  &  E.  B.  R.  R.  Co.,  23  Hun,  279  ;    88 

N.  Y.  13. 
Moody  v.  Osgood,  54  N.  Y.  488. 
Morrison  v.  N.Y.  C.  &  H.  R.  R.  R.  Co.,  63  N.Y.  643. 
Hart  v.  Hudson  River  Br..  Co.,  84  N.  Y.  56. 
Jones  v.  N.  Y.  C,  &c.  R.  R.  Co.,  10  Abb.  N.  C.  200; 

aff.  28  Hun,  364;  92  N.  Y.  628. 
Schwandner  v.  Birge,  33  Hun,  186. 

To  the  same  effect  in  other  States. 

Mayo  v.  Boston,  &e.  R.  R.  Co.,  104  Mass.  137. 
Chicago,  &c.  R.  R.  Co.  v.  Clark,  108  111.  113. 
Texas,  &c.  Ry.  Co.  v.  Crowder,  63  Tex.  502. 
New  Jersey  Exp.  Co.  v.  Nichols,  33  N.  J.  L.  434. 

Among  the  circumstances  which  have  been  held  suffi- 
cient to  raise  the  inference  of  care  on  the  part  of  the 
plaintiff,  may  be  mentioned  the  following  : 

(a)  Character  of  defendant's  negligence,  which  may 
be  such  as  prima  facie  to  establish  the  whole  issue. 

Johnson  v.  H.  R.  R.  R.  Co.,  supra. 

(b)  Known  indisposition  of  men  needlessly  to  subject 
themselves  to  danger. 

Id. 

Schwandner  v.  Birge,  supra. 


Contributory  Negligence.  209 

(c)  In  case  of  injury  causing  death,  there  being  no 
witnesses  of  the  injury,  the  habits  of  the  deceased,  as  to 
sobriety,  prudence,  &c. 

Chicago,  &c.  R.  R.  Co.  v.  Clark,  supra. 
Contra,  Chase  v,  Maine  Cent.  R.  R.  Co..  77  Me.  62. 

(d)  The  absence  of  all  appearance  of  fault. 

Mayo  v.  Boston,  &c.  R.  R.,  supra. 

(e)  Person  found  dead  at  the  foot  of  wall,  above  which 
was  a  street  unguarded  ;  last  seen  alone  on  street  above. 

Nowell  v.  New  York,  supra. 

(f)  Fact  that  plaintiff  was  injured  in  the  night-time, 

while  engaged  in  the  discharge  of  his  duty  as  a  brakeman 

on  defendants'  train,  by  the  breaking  of  a  ladder  attached 

to  his  car. 

Jones  v.  New  York  Central  &  H.  R.  R.   R.  Co., 
supra. 

5.  There  must,  however,  be  some  evidence  as  to  the 
conduct  of  the  injured  person. 

Glendening  v .  Sharp,  22  Hun,  78. 

And  where  circumstances  point  as  much  to  contribu- 
tory negligence  as  to  its  absence,  or  in  neither  direction, 
there  can  be  no  recovery. 

Kenney  v.  Manhattan  B.  R.  R.  Co.,  13  W.  Dig.  61. 
Tolman  v.  Syracuse,  &c.  R.  R.  Co.,  98  N.  Y.  198. 
McDermott  v.  Third  Ave.  R.  R.  Co.,  26  W.  Dig.  250. 

6.  For  wrongful  act.    It  may  be  added  here,  that  where 

14 


210  Practice. 

the  injury  was  caused  by  wrongful  act  rather  than  negli- 
gence, the  burden  of  proving  contributory  negligence  is 
on  the  defendant. 

Clifford  v.  Dam,  81  N.  T.  52. 
McGuire  v.  Spence,  91  N.  Y.  303. 


CHAPTER  VIII. 

DAMAGES. 

A.  Action  by  Person  Injured. 

1.  Fact  of  injury. 

2.  Speculative  consequences. 

3.  Measure,  generally. 

4.  Compensatory  only. 

5.  Prospective  damages. 

6.  Direct  pecuniary  loss. 

7.  Evidence  of  loss. 

8.  Speculative  damages. 

9.  Double  damages. 

10.  Physical  and  mental  suffering. 

11.  Disease  contracted. 

12.  Ill  health  before  injury. 

13.  Pecuniary  condition. 

14.  Married  woman. 

B.  Action  by  Husband   or  Parent. 

1.  Measure  to  husband. 

2.  Measure  to  parent. 

C.  Injuries  Causing  Death. 

1.  Introductory. 

2.  New  York  rule. 

3.  Pecuniary  damage  only. 

4.  Loss  to  beneficiaries  only. 

5.  Actual  and  prospective. 

6.  Measure. 

7.  Elements  and  evidence. 

8.  Damages  to  parent. 

9.  Interest. 

10.  Summary. 

The  fact  of  injury  is  of  course  the  chief  requisite  in 

[211] 


212  Practice. 

the  line  of  proof ;  its  extent  is  important  to  be  shown 
only  upon  the  question  of  damages.  For  convenience, 
both  fact  and  extent  are  considered  under  the  general 
subject  of  damages.  Some  classes  of  evidence  which 
have  been  held  proper  to  lay  before  the  jury,  to  enable 
them  to  fix  the  amount  of  recovery,  in  case  they  find  for 
the  plaintiff,  will  be  given  under  the  somewhat  arbitrary 
classification  which  follows  : 

A.    Action  by  Person  Injured. 

1.  Fact  of  injury.  This  may  be  proven  by  the  direct 
evidence  of  the  person  injured. 

Also  by  others  present,  that  the  plaintiff  made  excla- 
mations of  pain  at  the  time  of  the  injury. 

Hagenlocher  v.  C.  I.  &  B.  K.  E.  Co.,  99  N.  Y.  136. 
Nichols  v.  Brooklyn  City  E.  E.  Co.,  30  Hun,  437. 
Elkhart  v.  Bitter,  66  Ind.  136. 

Also  by  physicians  who  attended  the  injured  person, 
or  otherwise  made  examination. 

The  physician  may  testify  to  the  extent  of  the  injury, 
judging  from  his  examination,  including  what  the  patient 
said  at  the  time,  and  the  indications  of  suffering, 
although  there  was  no  external  evidence  of  injury. 

Quaife  v.  Chicago,  &c,  By.  Co.,  48  Wis.  513. 

Examination  eight  months  after  injury,  held  too  remote. 
Mosher  v.  BusseU,  26  W.  Dig.  234. 

Plaintiff  may  exhibit  the  injured  member  to  the  jury. 

Jordan  v.  Bowen,  46  Super.  355. 
Hiller  v.  Sharon  Springs,  28  Hun,  344. 
Indiana  Car  Co.  v.  Parker.  100  Ind.  181. 


D.1MA.GES.  213 

But  cannot  be  compelled  to  do  so  by  order  before  trial 

Roberts  v.  Ogdensburgh,  &c.  R.  R.  Co.,  29  Hun,  154. 
Newman  v.  Third  Ave.  R.  R.  Co.,  19  W.  Dig.  500. 

An  examination  in  court  by  a  physician  in  behalf  of 
the  defendant  was  held  properly  denied. 

Archer  v.  Sixth  Ave.  R.  R.  Co.,  52  Super.  378. 

2.  Speculative  injury.  Consequences  of  an  injury  from 
negligence  ichich  are  contingent,  speculative,  or  merely  possible, 
are  not  proper  to  be  considered  in  estimating  the  damages,  and 
may  not  be  proved. 

Strohm  v.  N.  Y.,  &c.  R.  R.  Co.,  96  N.  Y.  305. 

Walrath  v.  Whittekind,  26  Kan.  482. 

Tozer  v.  N.  Y.  C,  &c.  R.  R.  Co.,  26  W.  Dig.  72. 

2.  Measure  of  damages,  generally.  Damages  for  personal 
injury  include  everything  of  ichich  the  plaintiff  has  been  de- 
prived as  a  direct  and  natural  consequence  of  the  injury. 

Huizega  v.  Cutler,  &c.  Lumber  Co.,  51  Mich.  272. 


4.  Compensatory  only.    For  mere  negligence,  punitive  < h im- 
ages cannot  be  recovered.     Only  compensatory  damages  can  be 

allowed. 

Wilson  v.  Granby,  47  Conn.  59. 

Burr  v.  Plymouth,  48  Conn.  460. 

Chicago  v.  Langlass,  52  III.  256. 

Chicago  v.  Kelly.  69  111.  475. 

Louisville,  <fcc.  Ry.  Co.  v.  Shanks,  94  Ind.  598. 

Parsons  v.  Lindsay,  26  Kan.  426. 

Wilson  v.  Wheeling,  19  W.  Va.  323. 


214  Practice. 

5.  Prospective  damages.  The  person  injured  can  have  but 
one  action  for  such  injury,  and  in  that  action  he  may  have  pros- 
pective damages. 

Filer  v.  New  York  Central  B.  B.  Co.,  49  N.  Y.  42. 

Elkhart  v.  Bitter,  66  Ind.  136. 

Weisenberg  v.  Appleton,  26  Wis.  56. 

Staal  v.  Grand  St.,  &c.  R.  B.  Co.,  36  Hun,  208. 

Wardle  v.  New  Orleans  City  R.  R.  Co. ,  35  La.  An. 

202. 
Secord  v.  St.  Paul,  &c.  By.  Co.,  18  Fed.  R.  221. 
Scott  v.  Montgomery,  95  Pa.  Sfc.  444. 
Chicago,  &c.  R.  R.  Co.  v.  Avery,  10  111.  Ap.  210. 
Matteson  v.  New  York  Central  R,  R.  Co.,  62  Barb. 

364,  35  N.  Y.  487. 
Aaron  v.  Second  Ave.  R.  R.  Co.,  2  Daly,  127. 
Houston,  &c.  Ry.  Co.  v  Boehm,  57  Tex.  152. 
Klein  v.  Jewett,  36  N.  J.  Eq.  474. 
McLaughlin  v.  Corry,  77  Pa.  St.,  109. 
Stafford  v.  Oskaloosa,  64  Iowa,  251. 

The  limit  in  respect  to  future  damages  is,  that  they 
must  be  such  as  it  is  reasonably  certain  will  inevitably 
and  necessarily  result  from  the  injury. 

Filer  v.  N.  Y.  C.  B.  B.  Co.,  supra. 
Stafford  v.  Oskaloosa,  supra. 
Marvin  v.  Manhattan  By.  Co.,  53  Super.  527. 

For  the  purpose  of  estimating  future  damages,  phy- 
sicians may  be  sworn  as  to  the  probable,  result  of  the 
injury. 

Wendell  v.  Troy,  39  Barb.  329;  4  Abb.  Dec.  563. 

Strohm  r.  N.  Y.,  &c.  B.  B.  Co.,  96  N.  Y.  305. 

Jones  v.  Utica,  &c.  B.  B.  Co.,  40  Hun,  349. 

Griswold  v.  N.Y.  Cent.,  &c.  B.  B.  Co.,  26  W.  Dig.  358. 

6.  Direct  pecuniary  loss.  This  may  include  expenses  at- 
tending illness,  such  as  physicians',  druggists'  and  nurses' 
bills  ;  t1)  also  value  of  time  lost.  (2) 


Damages.  215 

(')  Giblin  r.  Mclntyre,  2  Utah,  384. 

Sheehan  v.  EJgar,  58  N.  Y.  631. 

Metcalf  r.  Baker,  57  N.  Y.  662. 

So.  &  No.  Anna  It.  R.  Co.  r.  McLendon,  63  Ala.  266. 

Reed  v.  Chicago,  &c.  R.  R.  Co.,  57  Iowa,  23. 

Brignoli  v.  Chicago,  &c.  Ry.  Co.,  4  Daly,  182. 
(2)  Nones  v.  Northouso,  46  "Vt.  587. 

Metcalf  v.  Baker,  supra. 

Drinkwater  r.  Dinsmore,  16  Hun,  250. 

Rev'd  on  other  grounds,  80  N.  Y.  390. 

But  board  cannot  be  allowed. 

Graiber  v.  Derwin,  43  Cal.  495. 

These  may  be  both  accrued  and  prospective. 

Stall  v.  Grand  St.,  &c.  R.  R.  Co.,  36  Hun,  208. 
Scott  v.  Montgomery,  95  Pa.  St.  444. 
Houston,  &c.  Ry.  Co.  v.  Boehm,  57  Tex.  152. 
Drinkwater  v.  Dinsmore,  supra. 
Brignoli  v.  Chicago,  &c.  Ry.  Co.,  supra. 
Chicago,  &c.  R.  R.  Co.  v.  Avery,  10  111.  Ap.  210. 
McLaughlin  v.  Corry,  77  Pa.  St.  109. 

Upon   the   question    of    accrued     expense,  the   jury 

cannot     speculate.      Nothing   can   be   allowed  therefor, 

unless   the    amount   be   shown   or   facts   from  which  to 
estimate  it. 

Thus  of  value  of  lost  time, 

Leeds  v.  Metropolitan  Gas  L.  Co.,  90  N.  Y.  26. 

and  of  medicines  and  attendance. 

Reed  v.  Chicago,  <tc.  R.  R.  Co.,  57  Iowa,  23. 
Eckerd  v.  Chicago,  etc.  Ry.  Co.,  (Iowa)  30  No.  W. 
R.  615. 

It  has  been   held,  in    New    York    and    Illinois,    that 
the  amount  paid  for  medical  attendance  cannot  be  allowed 


216  Peactice. 

without  proof  that  the  plaintiff  paid  it  or  became  liable 

therefor. 

Drinkwater  v.  Dinsmore,  80  N.  Y.  390. 
Moody  v.  Osgood,  50  Barb.  626. 
Joliet  v.  Henry,  11  111.  Ap.  154. 
Chicago  v .  Honey,  10  HI.  Ap.  535. 

But  in  several  States  the  value  of  services  of  physi- 
cians and  nurses  is  held  to  be  properly  shown,  though  it 
was  gratuitous. 

Klein  v.  Thompson,  19  Ohio  St.  569. 

Penn  Co.,  &c.  v.  Marion,  (Lid.)  3  No.  East  Rep.  874. 

Varnham  v.  Council  Bluffs,  52  Iowa,  698. 

Damages  may  be  given  for  future  expenses,  even  if 
there  be  no  proof  as  to  the  past. 

Staal  v.  Grand  St.,  &c.  R  R.  Co.,  36  Hun,  208. 

7.  Evidence  of  loss.  For  the  purpose  of  proving  pecun- 
iary loss,  both  past  and  future,  the  following  evidence 
has  been  held  competent. 

Inability  to  attend  to  business. 

Indianapolis  v.  Gaston,  58  Ind.  224. 
Walker  v.  Erie  Ry.  Co.,  63  Barb.  260. 
Brignoli  v.  Chicago,  &c.  Ry.  Co.,  4  Daly,  182. 

That  sole  means  of  support  was  earnings  as  phy- 
sician. 

Stafford  v.  Oskaloosa,  64  Iowa,  251. 

Past  earnings  and  capacity  to  earn. 

Ehrgott  v.  New  York,  96  N.  Y.  264. 
Nash  v.  Sharpe,  19  Hun,  3G5. 
Simonin  v.  N.  Y.,  &c.  R.  R.  Co.,  36  Hun,  214. 
Louisville,   &c.   Ry.  Co.  v.  Frawley,   (Ind.)  9  No. 
E.  R.  591. 

Difference  of  earnings  before  and  after  injury. 

Conner  v.  Pioneer,  &c.  Co.,  29  Fed.  R.  629. 


Damages.  217 

8.  Speculative  damages.      Prospective  profits    in    busi 
are  not  usually  recoverable,  being  in  II"  \r  nature  speculative. 

Phyfe  v.  Manhattan  Ry.  Co.,  30  Hun,  377. 
Marks  v.  L.  I.  R.  R.  Co.,  25  W.  Dig.  189. 

And  in  such  case  past  profits  are  incompetent  to  prove 

them. 

Masterton  v.  Mt.  Vernon,  58  N.  Y.  391. 

Upon  the  same  principle  it  has  been  held  incompetent 
to  show  that  the  plaintiff  was  in  line  of  promotion,  and 
expected  to  receive  greater  wages. 

Brown  v.  Chicago,  &c.  R.  R.  Co. ,  64  Iowa,  G52. 


9.  Double  damages.  One  cannot  recover  for  his  own  loss  of 
time  and  capacity  to  labor,  and  also  what  he  had  to  pay  en- 
other  to  supply  that  loss  of  labor. 

Blackman  v.  Gardiner  Bridge,  75  Me.  214. 


10.  Physical  and  mental  sufferings,  both  present  and  future, 
are  proper  elements  of  damages. 


Ransom  v.  N.  Y.  &  E.  R.  R,  Co.,  15  N.  Y.  415. 

Curtis  r.  R.  &  Syr.  R,  R.  Co.,  18  N.  Y.  684 

Walker  v.  Erie  Ry.  Co.,  G3  Barb.  260. 

So.  &  No.  AnnaR.  R.  Co.  r.  McLendon,  23  Ala  266. 

Drinkwater  v.  Dinsmore,  16  Hun,  250. 

De  Forest  v.  Utica,  69  N.  Y.  614. 

Giblin  v.  Mclntyre,  2  Utah,  384. 

Porter  v.  Hannibal,  &o.  R.  R.  Co.,  71  Mo.  6& 

Hamilton  v.  Third  Ave.  R.  R.  Co.,  40  Super.  376. 


218  Practice. 

To  which  may  be  added  "  consequent  privation  and  in- 
convenience." 

Scott  v.  Montgomery,  95  Pa.  St.  444. 

McLaughlin  v.  Corry,  77  Id.  109. 

Mental   suffering,  however,  does  not  constitute  a  dis- 
tinct item  of  damages. 

Giblin  v.  Mclntyre,  supra. 
Salina  v.  Trosper,  27  Kan.  544. 

The  pain  and  suffering  resulting  from  the  plaintiff's 
want  of  care  in  seeking  recovery  cannot  be  considered. 

Gilman  v.  Haley,  7  111.  Ap.  349. 

Nor  his  anxiety  for  the  safety  of  others. 

Keyes  v.  Minneapolis  Ey.  Co.  (Minn.),  30  N.  W.  E. 

888. 

11.  Disease  contracted.    Injury  to  health  is  a  proper  subject 

of  inquiry. 

Beckwith  v.  New  York  Central  E.  E.  Co.,  64  Barb. 

299. 

And  if  disease  resulted  from  the  injury,  damages  may  be 

allowTed  for  it. 

Houston,  &c.  Ey.  Co.  v.  Leslie,  57  Tex.  83. 

Stewart  v.  Eipon,  38  Wis.  584. 

Baltimore,  &c.  Ey.  Co.  v.  Kemp,  (Md.)  30  Alb.  L. 

J.  90. 
Ehrgott  v.  New  York,  96  N.  Y.  264. 
Oliver  v.  La  Valle,  36  Wis.  592. 

12.  Ill-health  before  injury.  If  by  reason  of  a  delicate 
condition  of  health  the  consequences  of  a  negligent  injury  are 
more  serious  still,  for  those  consequences  the  defendant  is  liable, 
although  they  were  aggravated  by  the  imperfect  bodily  con- 
dition. 

Tice  v.  Munn,  94  N.  Y.  621. 

Louisville,  &c.  Ey.  Co.  v.  Jones,  (Ind.)  9  No.  East. 
E.  476. 


Damages.  210 

13.  Pecuniary  condition.  Evidence  of  the  wealth  or 
poverty  of  the  plaintiff,(')  or  his  family/2)  or  the  de- 
fendant^3) is  incompetent  in  several  States. 

(i)  Shea  v.  Potrero,  &c.  R.  R.  Co.,  44  Cal.  414. 

Eagle  Packet  Co.  v.  Defries,  94  HI.  598. 

La  Salle  r.  Thorndike,  7  HI.  Ap.  282. 

Missouri  Pac.  R.  R.  Co.  v.  Lyde,  57  Tex.  505. 
(-)  Chicago  r.  O'Brennan,  G5  HI.  1G0. 

Louisville,  &c.  Co.  v.  Gower,  (Tenn)   3   So.  W.  R. 
824. 
(3)  Chicago  City  Ry.  Co.  v.  Henry,  G2  HI.  142. 

14.  Married  woman.  A  toifc  can  recover  only  for  such  loss 
of  services  as  she  ha?  sustained  herself  and  toivards  herself. 

Minick  v.  Troy,  19  Hun,  253;  83  N.  Y.  514. 

She  may,  however,  testify  that  she  did  all  the  work 
for  her  husband  and  large  family. 

Joliet  r.  Conway,  (HI.)  10  No.  East.  R.  223. 

She  may  recover  for  inability  to  care  for  her  property 
[her  husband  being  a  cripple]. 

Fitzsimons  v.  Rome,  21  W.  Dig.  343. 

Formerly  it  was  held  that  a  married  woman  could  not 
recover  for  expenses  of  medical  attendance,  unless  she 
had  charged  her  separate  estate  with  its  payment. 

Moody  v.  Osgood,  50  Barb.  628. 

B.  Action  by  Husband  or  Parent. 

1.  Measure  of  damages  to  husband.  The  r.icasure  of  dam- 
ages to  a  husband  whose  wife  has  been  injured  by  negKgena ,  is 


220  Pkactice. 

the  value  of  her  services  and  his  reasonable  expenses  in  procur- 
ing necessary  treatment  and  care  for  her. 

Meigs  v.  Buffalo,  23  W.  Dig.  497. 

The  husband  may  recover  for  the  necessary  labor 
substituted  for  the  ordinary  service  of  his  wife,  and  for 
his  own  services  in  attending  her. 

Lindsey  v.  Danville,  46  Yt.  144. 

And  for  loss  of  her  society. 

Jones  v.  Utica  &  Black  Biver  B.  B.  Co.,  40  Hun,  349. 

This  may  be  both  present  and  prospective  ;  and  a 
physician  may  testify  to  the  natural  and  probable  dura- 
tion of  the  injury. 

Jones  v.  U.  &  B.  B.  B.  B.  Co.,  supra. 

2.  Measure  of  damages  to  parent.  This  is  the  same  as 
in  the  last  case,  except  that  in  estimating  prospective 
damages  the  question  for  the  jury  to  determine  is  how  far 
the  injuries  are  permanent  as  affecting  the  ability  of  the 
child  to  work  until  its  majority. 

Hussey  v.  Byan,  (Md.)  4  East.  B.  462. 

C.  Foe  Injury  Causing  Death. 

1.  Introductory.  The  cause  of  action,  where  one  exists, 
where  injuries  from  negligence  are  the  cause  of  death, 
being,  as  stated  in  Part  I.  chapter  II.,  wholly  statutory, 
and  the  law  and  practice  thereon  being  different  in  differ- 
ent States,  it  is  difficult  to  formulate  any  general  rules. 

The  New  York  statutes  are  given  at  pages  14  to  18, 
and  attention  will  be  mainly  confined  to  the  rules  and 
decisions  under  those  statutes. 


Damages.  221 

2.  New  York  rule.  The  New  York  rule  gives  the  cause 
of  action  for  the  "  benefit  of  the  husband  or  wife  and  next 
of  kin  "  ;  and  provides  that  the  damages  awarded  shall 
be,  within  the  limit  established,  "a  fair  and  just  compen- 
sation for  the  pecuniary  injuries  resulting  from  the  deced- 
ent's death  to  the  person  or  persons  for  whose  benefit 
the  action  is  brought." 


3.  Pecuniary  damage.    The  first  principle  to  be  observed 

under   this   and   similar   statutes  is   that: — The  recovery 

must  be  confined  to  the  pecuniary  loss  sustained  by  the  death  of 

the  intestate  ;  and  damages  can  be  only  awarded  on  proof  of 

such  loss. 

Mitchell  r.  New  York   Central,  &c.   R.   R.   Co.,  2 
Hun,  535  ;  64  N.  Y.  655. 

But  proof  of  slight  loss  will  warrant  submission   to 

the  jury. 

Cornwall  v.  Mills,  44  N.  Y.  Super.  45. 

The  jury  must,  however,  judge,  not  guess. 

Houghkirk  v.  Delaware  &  Hudson  C,  Co.,  92  N.Y. 
219. 

There  can  be  no  allowance  for  grief  or  bereavement 
of  the  survivors. 

Lehman  v.  Brooklyn,  29  Barb.  234. 

Tflley  p.  Hudson  River  R.  R,  Co.,  24  N.  Y.  471. 

Etkerington  v.  P.  P.  &  C.  I.  R.  R.  Co.,  88  N.  T. 

641. 
Galveston  v.  Barbour,  62  Tex.  172. 
Mansfield,  &c.  Co.  v.  McEnery,  91  Pa.  St.  185. 
Huntingdon,  fro.  R.  R.  Co.  v.  Decker,  84  Id.  419. 
Kansas  Pacific  Ry.  Co.  v.  Cutter,  19  Kan.  83. 


222  Practice. 

Nashville,  &c,  B.  E.  Co.  v,  Stevens,  (Tenn.)  9  Heisk. 

12. 
Contra.    Baltimore,  &c.  E.  E.    Co.  v.  Noell,   (Virginia)   32 

Gratt.  394. 
Owen  v.  Brockschmidt,  54  Mo.  285. 

Nor  for  loss  of  society  and  companionship. 

Lehman  v.  Brooklyn,  supra. 

Etherington  v.  P.  P.,  &c.  E.  E.  Co  ,  svpra. 

Howard  Co.  Comrs.  v.  Legg,  93  Ind.  523. 


4.  Loss  to  beneficiaries  only.     Damages   can   be    awarded 
only  for  the  loss  to  the  persons  provided  for  in  the  statute. 

There  can  be  none  for  the  personal  wrong  or  suffer- 
ing of  the  person  killed. 

Tilley  v.  Hudson  Eiver  E.  E.  Co.,  24  N.  Y.  471. 
Etherington  v.  P.  P.,  &c.  E,  E  Co.,  88  N.  Y.  641. 
Holton  v.  Daly,  106  El.  131. 

Or  for  his  expense  for  medical  treatment. 
Holton  v.  Daly,  supra. 

Unless  a  beneficiary  is  chargeable  with  it,  in  which 
case  it  is  a  proper  item. 

Murphy  v.  N.  Y.  C,  &o.  E.  E.  Co.,  88  K  Y.  445. 
Pennsylvania  E.  E.  Co.  v.  Bantom,  54  Pa.  St.  495. 
Boeder  v.  Ormsby,  22  How.  Pr.  270. 

5.  Actual  and  prospective.      Both    special    or    actual    and 
prospective  general  damages  may  be  allowed. 

Houghkirk  v.  D.  &  H.  Canal  Co.,  92  N.  Y.  219. 
Gumb  v.  Twenty-third   St.    E.  E.  Co.,  1  N,  Y.  St. 
E.  715. 


Damages.  223 

The  beneficiary  will  not  be  limited  to  nominal  dam- 
ages, though  there  be  no  positive  evidence  of  actual 
pecuniary  loss. 

Dickens  v.  New  York  Central   R.    R.  Co.,  1    Abb. 

Dec.  504. 
Ryall  v.  Kennedy,  40  Super.  347. 
Kennedy  v.  Ryall,  G7  N.  Y.  379. 

Thus  in  action  for  killing  a  }'oung  child. 


Prendegast  v.  New  York  Central,  &c.  R.  R.  Co.,  58 

N.  Y.  652. 
Gorkam  v.  New  York   Central,  &c.   R.    R.  Co.,  23 

Hun,  449. 


But  when  special  damages  are  sought,  their  character 
and  amount  should  be  proven. 

Houghkirk  v.  D.  &  H.  Canal  Co.,  supra. 


6.  Measure  of  general  damages.  The  basis  of  general  dam- 
ages in  case  of  death  by  negligence  is  the  reasonable  expectation 
of  pecuniary  advantage  for  tlw  continuance  of  the  life. 

Thomas  v.  U.  &  B.   R.  R.   R.  Co.,  0   Civ.  Pro.  R. 

353  ;  34  Hun,  626  ;  98  N.  Y.  649. 
Burton  v.  Wilmington,  &c.  R.  R.  Co.,  82  N.  C.  504. 
Mansfield  Coal,  &c.  Co.  v.  McEnery,  91  Pa.  St.  185. 
Collins  v.  Davidson,  19  Fed.  R.  83. 
Nashville.  &c.  R.  R.Co.  p.  Stevens,  9  Heisk.  (Term.) 

12. 
Rafferty  v.  Buckman,  46  Iowa,  195. 
Carpenter  v.  Buffalo,  &c.  R,  R.  Co.,  38  Hun,  116. 


7.  Elements  and  evidence  of  same.      Pecuniary    injuries 


224  Practice. 

may  be  suck   as  arise   from  the   loss  of   personal    care, 
intellectual  culture  or  moral  training. 

Mclntyre  v.  N.  Y.  C.,  &c.  E.  E.  Co.,  37  N.  Y.  287. 
Tilley  v.  H.  E.  E.  E.  Co.,  24  N.  Y.  471. 

The  probable  duration  of  life  is  a  question  to  be  con- 
sidered. 

Scheffler  v.  Minneapolis,  &c.  Ey.  Co.,  32  Minn.  518. 

This  may  be  shown  by  the  Northampton  tables. 

Sauter  v.  New  York  Central,  &c.  E.  E.  Co.,  66  N 
Y.  50. 

It  is  proper  to  consider  the  age,  sex,^)  character, 
qualities,  capacity  and  condition  ;(2)  business,  property 
and  pecuniary  prospects  ;(3)  age,  habits,  industry,  means, 
business  ;(4)  age,  ability,  disposition  to  work,  habits  of 
living  and  expenditure  ;(5)  general  character  for  industry 
and  kindness  (but  not  specific  acts);  (6)  usual  earnings  (7) 
of  the  decedent. 

(i)  Ihl  v.  Forty-second  St.  E.  E.  Co.,  47  N.  Y.  317. 

(2)  Lockwood  v.  N.  Y,  L.  E.,  &c.  E.  E.  Co.,  98  N.  Y. 

523. 

(3)  Kansas  Pac.  Ey.  Co.  v.  Cutter,  19  Kan.  83. 
Huntingdon,    &c.    E.  E.  Co.  v.  Decker,  84  Pa.  St. 

419. 
March  v.  Walker,  48  Tex.  372. 

(4)  Burton  v.  Wilmington,  &c.  E.  E.  Co.,  82  N.  C.  504. 

(5)  Mansfield  Coal,  &c.  Co.  v.  McEnery,  91  Pa.  St.  185. 

(6)  Quinn  v.  Power,  29  Hun,  183. 
Eeversed  on  other  grounds,  87  N.  Y.  535. 

(7)  Mclntyre  v.  N.  Y.  C.  E.  E.,  &c.  Co.,  37  N.  Y.  287. 

It  is  also  proper  to  show  the  age,  sex,  circumstances 
and  condition  of  the  next  of  kin. 


Damages.  225 

Lockwood   >:  New  York,  <fcc.  R.  R.   Co. ,  98  N.  Y. 

523. 
Ihl  v.  Forty-second  St.  R.  R.  Co.,  47  N.  Y.  319. 
Carpenter  v.  Buffalo,  &c.  R.  R.  Co.,  38  Hun,  116. 


In  Indiana  (')  and  Illinois  (:)  it  is  held,  that  the  pecu- 
niary condition  of  those  who  would  benefit  by  the  recov- 
ery cannot  be  shown. 

(!)  Mayhew  v.  Burns,  2  No.  East.  Rep.  793. 

Indianapolis,  &c.  Ry.  Co.    v.   Pitzer,   6  No.  East. 
Rep.  310. 
(2)  Chicago  v.  McCulloch,  10  111.  Ap.  459. 

Chicago,  &c.  Ry.  Co.  v.  Moranda,  93  111.  302. 

Chicago,  &c.  R.  R.  Co.  v.  Henry,  7  HI.  Ap.  322. 

The  fact  cannot  be  considered  that  the  plaintiff  as 
next  of  kin  of  the  decedent  is  entitled  to  her  property  (') 
or  life-insurance.  (:) 

(i)  Terry  v.  Jewett,  78  N.  Y.  338. 

Malonee  v.  N.  Y.  C,  &c.  R.  R.  Co.,  20  W.  Dig.  252. 

Chicago,  &c.  Ry.  Co.  v.  Bayfield,  37  Mich.  205. 
(2)  Kellogg  v.  N.  Y.  C,  &c.  R.  R.  Co.,  79  N.  Y.  73. 


8.  Damages  to  parent.  Where  the  father  sites  as  adminis- 
trator and  is  the  sole  beneficiary,  he  may  recover  all  thz 
damages  which  he  would  have  been  entitled  to  had  his  son  sur- 
vived the  injury. 

McGovern  v.  N.  Y.  C,  &c.  R.  R.  Co.,  67  N.  Y.  417. 
Stuebing  v.  Marshall,  2  Civ.  Pro.  77. 

This  includes  cost  of  nursing  and  medical  attendance, 
and  funeral  expenses. 

Rains  v.  St.  Louis,  &c.  Ry.  Co.,  71  Mo.  164. 
15 


226  Pbactice. 

Also  loss  of  services  during  minority. 

McGovern  v.  N.  Y.  C,  &c.  Co.,  supra. 
Gill  v.  E.  &  P.  R  B.  Co.,  37  Hun,  107. 
Bains  v.  St.  Louis,  &c.  By.  Co.,  71  Mo.  164 

From  which  must  be  deducted   the   probable   cost   of 

maintenance. 

Benton  v.  Chicago,  &c.  B.  B.  Co.,  55  Iowa,  496. 
St.  Louis,  &c.  By.  Co.  v.  Freeman,  36  Ark.  41. 

But  loss  of  possible  counsel  and  advice  cannot  be 
allowed. 

Gill  v.  B.  &  P.  B.  E.  Co.,  supra. 

The  measure  of  value  of  a  child's  services  is  such  as 
is  ordinary  with  children  in  the  same  condition  and 
station  of  life,  without  regard  to  any  peculiar  value  the 
plaintiff  might  attach  to  the  child's  services. 

St.  Louis,  &c.  By.  Co.  v.  Freeman,  supra. 

The  recovery  in  such  case  is  not,  however,  limited  to 
loss  of  services  of  the  child  during  its  minority;  the 
action  would  still  lie  though  the  child  were  of  age. 

Birkett  v.  Knickerbocker  Ice  Co.,  25  W.  Dig  46. 
Lockwood  v.  N.  Y.,  &c.  B.  B.  Co.,  supra. 

Prospective  damages  for  loss  of  services  of  a  child 
cannot  be  recovered  unless  specially  alleged. 

Gilligan  v.  N.Y.  &  Harlem  B.  B.  Co.,  1 E.  D.  Sm.  453. 
9.  Interest.    In  1870  it  was  for  the  first  time  enacted  in 


Damages.  227 

New  York  that  damages  in  such  a  case  should  draw  in- 
terest from  the  time  of  death,  the  interest  to  be  "added 
to  the  verdict  and  inserted  in  the  entry  of  judg  uent." 

Laws  1870,  chap.  78. 

Prior  to  that  enactment  it  had  been  held,  that  while 
the  jury  might  take  into  account  the  time  that  had 
elapsed  as  affecting  the  amount  of  damages,  yet  they 
could  not  agree  upon  a  certain  sum  as  damages,  and  add 
to  it  interest  thereon  from  the  time  of  death. 

Cook  r.  New  York  Central,  &c.  R.  R.  Co.,  10  Hun, 
426. 

And  the  Court  of  Appeals  hold  that  the  position  of 
the  jury  is  the  same  under  the  Act  of  1870  ;  and  that 
where  the  jury  had  thus  included  interest  in  their  ver- 
dict the  clerk  was  still  bound  to  add  interest  upon  the 
entry  of  judgment. 

Manning  v.  Pt.  Henry  Iron  Co.,  91  N.  Y.  634.. 

It  has  been  held  that  the  rate  of  interest  in  a  given 
case  is  regulated  by  the  statute  in  force  when  the  verdict 
was  rendered. 

Salter  p.  Utioa,  &c.  R.  R.  Co.,  86  N.  Y.  401. 
(Overruling  Erwin  r.  Neversink,  <fec.  Co.,  23  Hun, 
578.) 


10.  Summary.  The  whole  subject  of  measure  of  damages 
in  case  death  results  from  an  injury  caused  by  negligence, 
is  excellently  summed  up  in  the  opinion  in  Carpenter  v. 
Buffalo,  etc.  E.  K.  Co.,  38  Hun,  116,  from  which  the  fol- 
lowing is  quoted  : 


228  Practice. 

"  The  estimate  of  them  does  not  necessarily  depend 
upon  the  pecuniary  condition  of  the  next  of  kin  as  dis- 
tinguished from  the  loss  suffered,  nor  are  they  dependent 
upon  a  legal  duty  or  obligation  of  the  deceased  during 
the  time  of  his  life  or  in  the  future,  if  he  had  continued 
to  live. 

"  While  the  injury  must  be  pecuniary  merely,  and  the 
damages  ascertained  from  the  evidence,  their  sources 
may  not  be  in  the  loss,  impairment  or  destruction  of  any 
established  legal  right,  but  in  the  deprivation  of  what 
reasonably  may  be,  or  may  have  been,  expected  by 
those  for  whose  benefit  the  recovery  is  had,  from  the  con- 
tinuance of  the  life  of  the  deceased.  Nor  are  they  con- 
fined to  the  present  loss  or  injury,  but  may  include  such 
as  the  jury  may  upon  the  evidence  believe  and  find  will 
in  the  future  result  from  the  death  as  the  proximate 
cause  of  it.  The  prospective  injuries  may  be  in  the  loss 
of  aid,  care  and  attention,  whether  by  services  and  money, 
or  either,  and  by  advice,  direction  and  protection,  or 
either,  in  business,  whether  for  purposes  of  accumulation 
or  preservation  of  the  estate  of  the  next  of  kin.  In  fact, 
'  the  statute  has  set  no  bounds  to  the  sources  of  those 
pecuniary  injuries.' 

"  There  may  be  difficulty  in  finding  support  for  the 
estimates  made,  in  any  well-defined  rule  of  reasoning  or 
in  the  logic  of  the  facts  presented  by  the  evidence,  but 
that  is  usually  for  the  jury  to  demonstrate  by  their 
verdict  only,  in  finding  which  they  are  required  to  keep 
within  the  limit,  in  respect  to  amount,  prescribed  by  the 
statute. 

"  These  damages  are  found  in  the  natural  and  rational 
consequences  which  in  the  judgment  of  the  jury  have 
resulted,  and  may,  and  therefore  will,  result  to  the  next 


Damages.  229 

of  kin,  when  such  alone  are  the  sufferers  of  those  named 
in  the  statute  as  the  beneficiaries  of  the  recovery. 

' '  They  are  not  susceptible  of  direct  proof,  and  no 
evidence  of  actual  injury  is  necessary  to  support  an  action, 
other  than  such  as  may  show  the  relation  and  situation 
of  those  who  may  be  entitled  to  the  fruits  of  the  remedy. 
The  amount  of  recovery  is  dependent  much  on  the  ability 
of  the  deceased  in  his  lifetime,  or  that  which  he  might,  if 
living,  possess  in  future ;  hence  his  mental  and  physical 
qualities  are  properly  matters  for  consideration,  as  well 
as  his  particular  relations  to  those  for  whose  benefit  relief 
is  sought.  And  out  of  the  uncertainty  of  the  pecuniary 
advantages  which  his  life  might  have  afforded  to  them, 
the  jury  are  to  find  certainty  to  a  reasonable  extent  in 
the  evidence  in  support  of  their  judgment  of  the  pecuni- 
ary injury  sustained." 


CHAPTER  IX. 

THE    DEFENDANT'S    CASE. 


1.  Generally. 

2.  Absence  of  negligence. 

3.  Absence  of  notice, 

4.  Act  of  plaintiff. 

5.  Medical  treatment. 

6.  Predisposition  to  disease. 

7.  Damages. 


1,  Generally.  The  defendant  may,  of  course,  rebut  all 
the  facts  which  the  plaintiff  attempts  to  establish.  Thus, 
it  may  offer  evidence  to  disprove  the  facts  of  incorpora- 
tion and  duty  to  repair  (though  an  action  is  hardly 
presumable  where  these  elements  are  not  beyond  dis- 
pute), and  the  fact  that  the  place  of  the  accident  was 
upon  one  of  its  streets  ;  may  dispute  the  fact  and  amount 
of  injury ;  may  deny  the  existence  of  the  defect  or  ob- 
struction ;  may  deny  that  it  had  notice  or  was  negligent ; 
may  attempt  to  prove  contributory  negligence  of  the 
plaintiff;  may  offer  evidence  to  reduce  the  amount  of 
damages.  It  is  only  purposed  to  notice  some  decisions 
upon  what  may  and  what  may  not  prevent  a  recovery  by 
the  plaintiff. 

2.  Evidence  to  rebut  negligence,    (a)    A   city   may  prove 
[230] 


The  Defendant's  Case.  231 

that   a   guard    placed   at   an    excavation    was     removed 
by  a  stranger. 

Sevestre  r.  New  York,  47  Super.  341. 
Parker  v.  Cohoes,  10  Hun,  531;  74  N.  Y.  610. 
Doherty  v.  Waltham,  4  Gray,  596. 
Mullen  v.  Rutland,  55  Vt.  77. 
Klatt  r.  Milwaukee,  53  Wis.  196. 

(b)  It  may  also  show  the  efforts  it  has  made  to  keep 
the  streets  safe  (')  and  the  limitation  of  its  power  ;  and  to 
that  end  may  show  the  extent  of  its  streets,  the  amount 
of  travel,  the  number  of  similar  dangers,  and  its  facilities 
for  removing  obstructions.  (2) 

(i)  Tinkham  v.  New  York,  N.  Y.  Daily  Reg.,  Oct.  22, 

1883. 
(2)  Reed  v.  New  York,  31  Hun,  311. 

(c)  The  absence  of  necessary  funds  and  of  legal  means 
to  procure  them  will  excuse  the  neglect,  but  must  be 
shown  as  a  defense. 

Hines  v.  Lockport,  50  N.  Y.  236. 
Weed  v.  Ballston,  76  N.  Y.  329. 

A  city  cannot  raise  the  question  that  it  is  already 
indebted  to  an  amount  exceeding  the  constitutional  lim- 
itation. 

Bloomington  v.  Perdue,  99  HI.  329. 

(d)  It  cannot  excuse  its  negligence  by  showing  that 
there  were  similar  (')  or  worse  (2)  places  in  the  neighbor- 
hood, 

(i)  Schoonmaker  v.  Wilbrahani,  110  Mass.  134. 

Bauer  v.  Indianapolis,  99  Ind.  56. 

Temperance  Hall  As'nr.  Giles,  33  N.  J.  L.  260. 
(2)  Hyatt  v.  Rondout,  44  Barb.  385;  41  N.  Y.  619. 


232  Practice. 

or  that  others  had  passed  uninjured. 
Same  cases. 

(e)  It  cannot  defend  by  showing  that  the  defect 
existed  at  the  time  of  incorporation,  or  the  omission  to 
make   ordinances   or  by-laws   in  reference  to   repairing 

Nelson  v.  Cauisteo,  100  N.  T.  89. 

(f)  Legislative  authority  to  make  an  excavation  in  a 
street  does  not  authorize  or  excuse  negligence  in  mak- 
ing it. 

Steivermann  v.  White,  48  N.  Y.  Super.  523. 

(g)  The  fact  that  a  city  has  employed  competent 
officers,  does  not  excuse  their  negligence. 

New  York  v.  .Furze,  3  Hill,  612. 

(h)  Nor  can  it  excuse  itself  by  laying  the  blame  on  an 
incompetent  officer  of  its  own  selection. 

Rochester,  &c.  Co.  v.  Bochester,  3  N.  Y.  463. 

(i)  Nor  by  the  fact  that  its  officers  believed  the  street 
Goodfellow  v.  New  York,  100  N.  Y.  15. 

(j)  Nor  by  instructing  its  subordinates  to  ascertain 
the  facts  and  report. 
Id. 

(k)  It  cannot  excuse  itself  by  the  fact  that  it  has 
entered  into  a  contract  to  repair  the  street. 

Jacksonville  v.  Drew,  19  Fla.  106. 


The  Defendant's  Case.  233 

3.  Notice.  It  is  proper  to  show  that  those  constantly 
using  a  street  failed  to  notice  the  obstruction,  as  tending 
to  the  presumption  that  the  municipal  authorities  had 
no  notice. 

Broburg  v.  Des  Moines,  G3  Iowa,  523. 


4.  Act  of  plaintiff. 

(a)  As  tending  to  show  contributory  negligence,  it  is 
proper  to  show  that  numerous  persons  passed  on  the 
same  night  without  difficulty  or  danger. 

Fairbury  v.  Rogers,  2  111.  App.  96. 


(b)  The  ulterior  purpose  of  the  plaintiff  in  crossing  a 

particular  bridge,    does   not  affect  his   right  to  have  it 

safe. 

Strong  v.  Stevens  Point,  62  Wis.  255. 

(c)  Nor  is   he  barred  because  he  was  injured  while 
doing  an  unlawful  act, — as  travelling  on  Sunday. 

Platz  v.  Cohoes,  89  N.  Y.  219. 
Carroll  v.  S.  I.  K  R.  Co.,  58  N.  Y.  126. 
Sutton  v.  Wauwatosa,  29  Wis.  21. 
Opsahl  v.  Judd,  (Minn.)  27  Alb.  L.  J.  277. 


5.  Medical  treatment.    Unskillful  treatment  by  physi- 
cians does  not  preclude  from  damages. 

Lyons  v.  Erie  Ry.  Co.,  57  N.  Y.  489. 
Tuttle  v.  Farmington,  58  N.  H.  13. 
Pullman,  &o.  Co.  v.  Blukm,  109  111.  20. 


234  Practice. 

6.     Predisposition  to  disease    does    not   prevent   a    re- 
covery. 

McNaniara  v.  Clinton ville,  62  Wis.  207. 
Baltimore   City    By.   Co.    v.  Keefe,   (Md.)  30  Alb. 
L.  J.  90. 


7.  Damages.  Undoubtedly,  however,  evidence  of  both 
the  last  two  facts  would  be  competent  upon  the  question 
of  damages. 

So  also  the  following  : 

(a)  When  the  plaintiff  claims  to  have  been  disabled 
from  practicing  as  a  physician,  and  claims  damages 
therefor,  held,  that  the  defendant  might  show  that  this 
practice  was  unlawful ;  that  he  had  no  professional  repu- 
tation. 

Jaques  v.  Bridgeport  Horse  B.  B.  Co.,  41  Conn.  61. 

(b)  The  defendant  claiming  upon  a  second  trial  that 
Bright's  disease  was  caused  by  falling  on  a  sidewalk, 
held,  competent  to  show  that  no  such  claim  had  been 
made  before. 

Fieeport  v.  Isbell,  93  HI.  381. 

(c)  Proof  of  loss  of  wages  may  be  rebutted  by  show- 
ing that  wages  were  really  paid. 

Drinkwater  v.  Dinsmore,  80  N.  Y.  390. 


CHAPTER  X. 

QUESTIONS  FOR  COURT  AND  FOR  JURY. 

1.  Introductory. 

2.  General  rule. 

3.  Illustrations. 

4.  Contributory  negligence  ;  rule. 

5.  Contributory  negligence  for  jury  ;  cases. 

6.  Contributory  negligence  ;  when  question  for  court. 

7.  Excessive  damages. 

1.  Introductory.  It  has  sometimes  been  said  that  the 
question  of  negligence  in  a  particular  case  is  one  of 
mixed  law  and  fact. 

Filer  v.  New  York  Central  R.  R.  Co.,  49  N.  Y.  47. 
Greenleaf  v.  Illinois,  &o.  R.  R.  Co.,  29  Iowa,  14. 

Others  pronounce  it  one  of  fact  only. 

Thurber  v.  Harlem  Bridge,  &c.  R.  R.  Co.,  60  N.  Y. 
326. 

The  difference  is  one  of  expression  ;  the  courts  in  the 
former  cases  meaning  merely,  as  they  say,  that  "  it  is  the 
duty  of  the  court  to  submit  the  same  to  the  jury,  with 
proper  instructions  as  to  the  law." 

The  following  seems  to   be   the  generally  recognized 

general 

[2351 


236  Pkactice. 

2.  Rule.  Where  the  evidence  of  negligence  is  undisputed  or 
irresistible,  it  is  for  the  court  to  decide  ;  but  where  facts  or  in- 
ferences are  in  any  way  doubtful,  the  question  of  negligence  is 
for  the  jury. 

Cases  cited  under  1,  supra;  also, 

Gagg  v.  Vetter,  41  Ind.  228. 

Delaney  v.  Milwaukee,  &o.  R.  R.  Co.,  33  Wis.  67. 

O'Neill  v.  Chicago,  &c.  Ry.  Co.,  1  McCrary  C.  Ct. 

505. 
Hunt  v.  Salem,  121  Mass.  294. 
Payne  v.  Troy  &  Boston  R.  R.  Co.,  83  N.  T.  572. 

The  practical  application  of  the  above  rule  is  sug- 
gested in  the  following : 

Negligence  is  usually  a  question  of  fact.  And  espe- 
cially so  whenever  men  of  ordinary  prudence  and  discre- 
tion might  differ  as  to  the  character  of  the  act  under  the 
circumstances  of  the  case. 

Hayes  v.  Miller,  70  N.  Y.  at  p.  116. 

Thurber  v.  Harlem  Br.,  &c.  Ry.  Co. ,  60  N.  Y.  at  p. 

331. 
Teipel  v.  Hilsendegen,  44  Mich.  461. 

3.  Illustrations.  Each  of  the  following  questions  have 
been  held  to  be  within  the  province  of  the  jury  : 

(a)  Whether  a  city  is  liable  for  injuries  caused  by  the 
formation  of  ice  around  a  pump  and  leader. 

Allison  v.  Middletown,  101  N.  Y.  667. 

(b)  Whether  a  sidewalk  is  properly  constructed. 

Sullivan  v.  Oshkosh,  55  Wis.  558. 


Questions  for  Court  and  for  Jury.  237 

(c)  Whether  a  slight  inequality,  obstruction  or  depres- 
sion is  a  dangerous  defect. 

Goodfel  ow  v.  New  York,  100  N.  Y.  15. 

Glantz  v.  Ho.  Bend,  (lnd.)  6  No.  East.  Rep.  632. 

(d)  Whether,    after   a   snowfall,    proper   diligence    is 
observed  in  making  walks  safe. 

Providence  r.  Clapp,  17  How.  (U.  S.)  161. 

(e)  Whether  a  piece  of  gas  apparatus  fixed  in  a  side- 
walk so  as  to  trip  persons,  is  a  defect  for  which  the  city 

is  liable. 

Loan  v.  Boston,  106  Mass.  450. 

(f)  Whether  a  city  is  responsible  for  a  hole  beside 
the  sidewalk. 

Phillips  v.  Fishkill,  26  W.  Dig.  103. 

(g)  Or  for  a  secret  defect  in  an  awning. 

Hume  v.  New  York,  47  N.  Y.  639. 


4.  Contributory  negligence ;  rule.  To  justify  a  non-suit 
on  the  ground  of  contributory  negligence,  the  undisputed  fads 
must  shoiv  the  omission  or  commission  of  some  act  which  the 
law  adjudges  negligent  ;  the  negligence  must  appear  so  clearly 
that  no  construction  of  the  evidence  or  inference  drawn  from 
the  facts  will  warrant  a  contrary  conclusion. 

Stackus  r.  N.  Y.  C,  &c.  R.  R.  Co..  79  N.  Y.  464. 

Moody  r.  Osgood,  54  N.  Y.  488. 

Borst  v.  L.  S.  &  M.  S.  Ry.  Co.,  4  Hun,  346  ;  66  N. 

Y.  639. 
Munroe  v.  Third  Ave.  R.  R.  Co.,  50  Super.  114. 
Spaulding  v.  Jarvis,  32  Hun,  621. 


238  Practice. 


Cook  v.  New  York  Central  B.  B.  Co.,  1  Abb.  Dec. 

432. 
Osage  City  v.  Brown,  27  Kan.  74. 
Williams  v.  Syracuse  Iron  Works,  31  Hun,  392. 
Pendril  v.  Second  Ave.  B.  B.  Co.,  34  Super.  481. 
Dickens  v.  New  York  Central  B.  B.  Co.,  1  Abb. 

Dec.  504. 
Budolphy  v.  Fuchs,  44  How.  Pr.  155. 
Millard  v.  Pinard,  41  Vt.  34. 
Pennsylvania  B.  B.  Co.  v.  Bighter,  42  N.  J.  L.  180, 


5.  Contributory  negligence,  questioner  jury  ;  cases.  The 
cases  in  which  the  question  of  contributory  negligence 
has  been  decided  to  be  for  the  jury  to  determine,  are 
very  numerous.  Only  a  few  will  be  mentioned,  in  which 
municipal  corporations  were  parties. 

Diveny  v.  Elmira,  51  N.  Y.  506. 
Todd  v.  Troy,  61  N.  Y.  506. 
Niven  v.  Bochester,  76  N.  Y.  619. 
Sewell  v.  Cohoes,  75  N.  Y.  45. 
Gillespie  v.  Newburgh,  54  N.  Y.  468. 
Buland  v.  South  Newmarket,  59  N.  H.  291. 
Fassett  v.  Boxbury,  55  Vt.  552. 
Shook  v.  Cohoes,  23  W.  Dig.  4. 


6.  "When  question  of  law.  (a)  Where  it  is  manifest 
that  the  injury  would  not  have  occurred  but  for  the 
plaintiff's  carelessness,  a  non-suit  is  proper. 

Davenport  v.  Brooklyn  City  B.  B.  Co.,  32  Alb.  L. 
J.  516. 

(b)  So,  also,  if  there  be  no  evidence  of  the  acts  of  the 

person  injured. 

Wood  v.  Andes,  11  Hun,  543. 
Bowen  v.  Borne,  23  W.  Dig.  406. 


Questions  for  Court  and  for  Jury. 


239 


This,  however,  is  subject  to  the  rule  that  such  evi- 
dence may  be  circumstantial  (see  page  207,  &c.). 

Excessive  damages.  The  question  of  damages  is  so  far 
within  the  province  of  the  jury,  that  it  has  been  held 
that  a  verdict  will  not  be  set  aside  as  excessive  unless  it 
manifestly  appears  to  be  the  result  of  passion,  partiality, 
prejudice  or  corruption  ;  although  it  appear  to  the  court 
much  too  large. 

Minick  v.  Troy,  19  Hun,  253;  83  N.  Y.  514. 

It  may  be  noticed  here  that  the  New  York  Court  of 
Appeals  holds  that  it  has  no  jurisdiction  to  reverse  a 
judgment  in  a  negligence  case  on  the  ground  of  excessive 

damages. 

Gale  v.  New  York  Central,  &c.  R.  R.  Co.,  76  N.  Y. 

594. 


FORM  S. 


No.  1. 

Statement  of  Claim  by  Person  Injured. 

To  ,  Esq.,  Comptroller, 

[or,  To  The  Common  Council  j  of  the  City  of  : 

Please  take  notice,  that  I,  the  undersigned,  have  and 
do  hereby  present  a  claim  against  the  City  of  for 

the  sum  of  dollars. 

That  the  facts  and  circumstances  out  of  which  said 
claim  arises  are  as  follows  : 

That  on  the  evening  of  ,  188     ,   I   was 

carefully  passing  along  the  sidewalk  on  the  south  side 
of  street,  in  the  City  of  ,  when  I  fell  and 

was  greatly  injured  by  reason  of  the  icy  condition  of  the 
sidewalk,  forming  an  obstruction  thereon. 

That  the  place  where  I  fell  is  between  and 

streets,   and   opposite   the   property   known 
as  the  premises  ;    and   that,  as  I  am  informed 

and  believe,  the  said  sidewalk  had  been  icy  and  obstructed 
at  that  point  for  a  long  time  theretofore,  and  such  con- 
dition was  caused  or  suffered  by  the  negligent  conduct  of 
the  City  of  and  its  officers  in  the  care  of  its 

streets  and  sidewalks. 

That  by   reason   of  said  fall   I  have    sufiered   great 
injuries  :  that  I  fractured  one  or  both  the  bones  of  my 
16  [2411 


24:2  Forms. 

right  leg  below  tlie  knee  ;  that  I  have  suffered  great  pain 
therefrom  and  have  been  and  am  unable  to  use  the  said  leg 
or  to  walk,  and  believe  such  disability  will  be  in  some 
degree  permanent. 

That  said  injury  happened  without  fault  or  negligence 
on  my  part. 

That  I  have  suffered,  and  am  likely  to  suffer  great  loss 
and  damage  through  the  negligence  of  said  city  and  its 
officers  as  aforesaid,  and  have  been  put  to  great  incon- 
venience and  expense,  and  by  reason  of  the  premises 
claim  from  the  City  the  said  sum  of  dollars. 

Dated 

[Signature  of  Claimant.'] 

[Verification,  where  necessary,  in  ordinary  form  as  for 
pleading.'] 


No.  2. 

Statement  of  Claim  by  General   G-nardian 
of  Infant. 

To  ,  Esq.,  Comptroller  of  the 

City  of  : 

Take  notice,  that  the  undersigned,  as  general  guardian 
.of  A.  B.  an  infant  under  the  age  of  twenty-one  years,  to 
wit :  of  the  age  of  years,  on  the  day 

of  ,  188     ,  and  in  behalf  of  said  infant,  has  a  claim 

against  the  City  of  ,  not  arising  on  contract, 

but  for  injuries  to  the  person  of  the  said  A.  B.,  to  the 
amount  of  dollars,  which  said  claim,  with  an 

abstract  of  the  facts  out  of  which  it  arises,  is  herewith 
presented  to  and  filed  with  the  said  comptroller  of  said 
City  of 

The  facts  out  of  which  such  claim  arises  are  briefly 
these  : 

[Describe  accident  and  injury,  stating  location  and  nature 
of  defect  or  obstruction;  time  and  other  particulars  of  accident; 


FDBM8.  343 

nature  and  extent  of  injury; /acta  showing  actual  or  implied 
notice  cud  negligence,  and  absence  of  contributory  negligence.^ 

That  the  damages  sustained  by  the  said  A.  B.  amount 
to  the  sum   of  dollars,  which  sum  the  under- 

signed demands  from  said  city,  on  behalf  of  said  infant, 
for  the  injuries  received  by  him. 
Dated 

CD., 
General  Guardian  of  A.  B.,  an  infant. 


No.  3. 

Claim  for  the  Loss  of  Services  of  Wife  or 
Minor  Child. 

To  the  Comptroller  of  the  City  of  : 

Notice  is  hereby  given  that  I  have  and  hereby  present 
a  claim  against  the  City  of  for  dollars, 

damages,  for  injuries  sustained  by  my  wife  C.  B.  [or,  by 
my  minor  son  D.  B.]  whereby  I  have  lost  and  will  lose 
her  [or,  his]  services  and  have  incurred  expense  for 
medical  attendance  and  nursing  [etc.,  etc.]  and  have  been 
otherwise  injured  to  the  amount  of  dollars  as 

aforesaid. 

The  facts  out  of  which  said  claim  arises  are  as  follows  : 
[Describe  accident  and  injury,  etc.] 


No.  4. 

Claim  by  Personal  Representative. 

To  the  Comptroller  of  the  City  of  : 

You  will  please  take  notice  that  I,  as  administrator  of 
the  goods,  chattels  and  credits  [or,  as  executor,  etc.]  of  A. 
B.,  deceased,  have  and  present  a  claim,  etc.  etc. 


244  Forms. 

No.  5. 

Notice  to  Law  Officer. 

Laivs  1886,  chap.  572.     Notice  by  person  injured. 

To  ,  Esq.,  Corporation  Counsel 

[or,  City  Attorney]  of  the  City  of 

You  will  please  take  notice  that  I  have  a  claim  against 
the  City  of  ,  which  was  filed  with  the  comptrol- 

ler of  said  city  on  the  day  of  ,  188     , 

for  dollars,  damages  for  a  personal  injury 

sustained  by  me  on  the  day  of  ,  18       , 

on  street,  opposite  or  nearly  opposite  premises 

known  by  street  number  as  ,  and  that  I  am  about 

to  commence  an  action  against  said  city  to  recover  for 
such  injury. 

Dated  .  [Signature  of  claimant.'] 

[The  above  may  be  varied  to  meet  cases  where  the  action  is 
to  be  brought  by  an  administrator  or  executor,  a  husband  or 
parent  for  loss  of  services,  etc.'] 


No.  6. 

Complaint  "by  Person  Injured. 

Containing  allegations  of  notice  to  laiv-officer  and  of  have  to 
sue  in  forma  pauperis. 

[Court,  and  title  of  cause.] 

Plaintiff  complains  and  shows  to  the  court : 

First.     Upon  information  and  belief,  that  the  defendant 

is  a  municipal  corporation  duly  organized  under  the  laws 

of  the  State  of  New  York. 

Second.     Also,  upon  information  and  belief,  that  among 


Forms.  245 

other  things  it  is  by  the  charter  of  the  said  city  made  its 
duty  to  keep  the  streets  and  sidewalks  in  said  city  in 
good  order,  and  at  all  times  properly  protected  and  kept 
clear  from  all  and  every  obstruction. 

Third.  Also  upon  information  and  belief,  that  the 
street  in  said  city  known  ;is  street  has  been  and 

is  much  traveled  and  used  by  the  citizens  thereof  and 
others,  and  is  a  public  street  of  said  city. 

Fourth.     That   on  the  day    of  , 

188  ,  this  plaintiff  was  carefully  passing  along  the  side- 
walk on  the  north  side  of  said  street ;  when  at 
a  point  between  and  streets  and 
opposite  the  house  numbered  ,  she  fell,  and  was 
greatly  injured  by  reason  of  an  obstruction  and  the  unsafe 
and  icy  condition  of  the  sidewalk  at  said  point,  the  same 
being,  and,  as  the  plaintiff  is  informed  and  believes,  for  a 
long  time  previously  having  been  covered  with  ice  and 
snow. 

Fifth.  Upon  information  and  belief,  that  such  con- 
dition of  said  sidewalk  was  caused  by  the  negligent 
conduct  of  the  said  city  and  its  officers  in  the  manage- 
ment and  care  of  its  said  streets  and  sidewalks. 

Sixth.  That  by  reason  of  said  fall  this  plaintiff 
suffered  great  and  permanent  injuries,  having  broken  her 
right  arm  at  the  elbow  and  having  been  for  a  long  time, 
and  now  being,  confined  to  her  house,  crippled  and 
rendered  sick,  sore  and  lame,  and  has  suffered  groat  pain, 
loss  and  damage,  and  has  been  put  to  great  expense  for 
medical  attendance,  and  has  been  otherwise  greatly  injured 
through  the  negligence  of  said  city  and  its  officers,  as 
aforesaid,  to  her  damage  five  thousand  dollars. 

Seventh.  [Add  allegation  of  .service '.of  noli'  r  on  <<>mptrol- 
ler  or  other  officer,  where  necessary.] 

Eighth.  [If  defendant  be  city  of  50,000  or  more  inhabit- 
ants, add  allegation  of  service  of  notice  on  law-officer^  thus:] 

That  on  or  about  the  day  of  ,  188    , 

notice  was  duly  given  to  and  filed  with  the  corporation 
counsel  to  the  defendant,  being   the   proper  law-officer 


246  Forms. 

thereof,  of  the  intention  of  the  plaintiff  to  commence  an 
action  to  recover  for  the  injuries  aforesaid,  which  said 
notice  contained  a  true  statement  of  the  time  and  place  at 
which  the  said  injuries  were  received. 

Ninth.  [If  plaintiff  sue  in  forma  pauperis,  add  the 
folloiving :] 

That  prior  to  the  beginning  of  this  action  the  plaintiff 
made  application  in  due  form  of  law  to  this  court  for 
leave  to  bring  this  action  and  prosecute  the  same  as  a 
poor  person ;  and  by  the  order  of  this  court,  made  at  a 
special  term  thereof,  entered  in  County  Clerk's 

office  on  the  day  ,  188     ,  such  appli- 

cation was  granted,  and  ,  Esq., 

was  assigned  to  conduct  the  same  as  her  attorney  and 
counsel. 

Wherefore,  etc. 


No.  7. 

Complaint   by    Infant    through    Guardian 
ad  litem. 

Containing  allegation  of  service  of  claim  on*  comj)tr  oiler. 
Court. 


A.  B.,  an  infant,  by  C.  B.,  his 
guardian  ad  litem, 
against 
The  City  of 


Trial  desired 
in  County. 


A.  B.,  an  infant,  by  C.  B.,  his  guardian  ad  litem,  for 
cause  of  action  against  the  City  of  ,  the  defend- 

ant in  this  action,  respectfully  shows  to  this  court  : 

First.  That  the  plaintiff  is  an  infant  under  the  age  of 
twenty-one  years,  and  that  by  order  of  this  court,  made 


Forms.  247 

at  a  Special  Term  thereof  on  the  day  of  , 

18  ,  the  said  C  B.  was  duly  appointed  as  the  guardian 
ad  litem  of  said  plaintiff,  who  was  years  of  age 

on  the  day  of  ,  18       ,  with  power  and 

authority  to  commence  this  action  and  to  prosecute  the 
same  as  such  guardian  ad  litem  on  behalf  of  the  said 
infant  plaintiff. 

Second.  That  the  defendant  is  and  for  several  years 
next  before  the  commencement  of  this  action  has  been  a 
municipal  corporation,  and  as  such  during  all  said  time 
has  been  and  still  is  charged  with  the  duty  of  maintaining 
and  keeping  the  public  streets,  avenues,  highways  and 
alleys  within  its  corporate  limits  in  good  repair  and  in 
reasonably  safe  condition  for  travel  by  vehicles,  teams 
and  pedestrians. 

Third.  That  one  of  the  public  streets  or  thorough- 
fares of  the  said  City  of  is  known  and  designated 
as  street,  which  for  maii3r  years  next  before  the 
commencement  of  this  action  was  worked  by  the  muni- 
cipal authorities  of  the  City  of  ,  and  was  used  as  a 
public  street  by  the  citizens  of  and  the  traveling 
public  generally. 

Fourth.     That  on  the  day  of  , 

18      ,  there  was   a  large,   deep  and   dangerous   hole  or 
opening  in  the  traveled  roadway  in  the  said 
street  near  its  intersection  with  street,  which 

said  hole  or  opening  had  long  existed  and  been  suffered 
to  be  and  remain  by  reason  of  the  negligence,  carelessness 
and  want  of  care  and  neglect  of  duty  on  the  part  of  the 
defendant  and  its  officers  and  servants,  to  wit,  for  the 
space  of  at  least  four  weeks,  during  all  which  time 
said  street,  at  the  place  aforesaid,  was  in  a  defec- 

tive, unsafe  and  dangerous  condition  by  reason  of  the  said 
hole  or  opening. 

Fifth.  That  before  the  happening  of  the  injury  here- 
inafter complained  of,  the  municipal  authorities  of  the 
City  of  had   notice   of  the   said   hole    in   said 

street,  or  from  its  public  and  notorious  character  they 


248  Forms. 

should  have  had  knowledge  of  said  opening  or  hole,  and 
should  have  repaired  the  same. 

Sixth.     That   on   or   about   the  day 

of  ,  18      ,  the  said   plaintiff  was  lawfully 

riding  with  his  father,  the  said  C.  B.,  in  a  one-horse  wagon 
drawn  by  a  single  horse  along  and  upon  said 
street ;  and  while  he,  the  said  father,  was  driving  the  said 
vehicle,  without  fault  or  negligence  of  the  said  plaintiff  or 
said  driver,  one  of  the  forward  wheels  of  said  vehicle 
suddenly  dropped  into  said  hole,  by  reason  whereof  the 
said  A.  B.,  the  plaintiff  herein,  was  suddenly  thrown  from 
the  said  vehicle,  precipitated  upon  the  ground,  thereby 
receiving  great  and  permanent  injuries  to  his  person  by 
fracturing  one  or  more  bones  of  his  shoulder  or  chest, 
and  otherwise  causing  great  pain,  injury  and  distress, 
which  confined  him  to  the  bed  for  a  long  time  and  to  the 
care  of  physicians,  and  still  does  suffer  pain  and  distress 
from  said  injury,  to  the  damage  of  the  said  plaintiff  of 
five  thousand  dollars. 

Seventh.     That  on   the  day  of  , 

18  ,  the  claim  for  which  this  action  is  brought,  with  an 
abstract  or  statement  of  the  facts  out  of  which  this  cause 
of  action  arose,  made  and  verified  according  to  bhe  statute 
in  such  cases  made  and  provided,  was  duly  presented  to 
and  filed  with  the  Comptroller  of  the  City  of  ,  who 

did  not  within  days  thereafter  audit  or  pay  the 

same. 

[Add,  when  necessary,  allegation  of  notice  to  laiv-qfficer.] 

Wherefore,  etc. 


Forms.  249 

No.  8. 
Complaint  by  Administrator  of  Infant. 

Containing  allegations  of  appointment  of  administrator,  and  of 
absence  of  imputable  contributor  ij  negligence. 

Court.  Trial  desired  in  county. 


A.  B.,  as  administrator  of  the  goods, 
chattels  and  credits  of  C.  B.,  de- 
ceased, 

against 

The  City  of 


The  above-named  plaintiff,  as  administrator,  &c.  of  C. 
B.,  deceased,  complains  against  the  above-named  defend- 
ant, and  for  cause  of  action  alleges  : 

First.  That  the  defendant  is,  and  during  all  the  time 
hereinafter  named  was,  a  municipal  corporation,  duly 
organized  under  and  by  virtue  of  the  laws  of  the  State  of 
New  York  ;  and  that  among  other  things  it  is  and  was 
the  duty  of  said  defendant  to  keep  and  maintain  the 
streets  and  sidewalks  in  said  city  in  a  good,  safe  and  pass- 
able condition  for  persons  passing  and  walking  thereon. 

Second.  That  said  defendant,  disregarding  and  neg- 
lecting its  duty  in  this  respect,  on  the  day 
of  ,  18  ,  and  for  a  long  time  prior  thereto,  suf- 
fered and  allowed  one  of  the  streets  in  said  cit}-,  known 
as  street,  and  particularly  the  south  side- 
walk thereof,  at  a  point  just  east  of  street,  to 
be  and  remain,  to  its  knowledge,  in  an  unsafe,  dangerous 
and  impassable  condition  for  persons  walking  or  passing 
thereon,  by  reason  of  a  large  wooden  structure  or  counter 
about  eighteen  feet  long,  which  leaned  against  the  build- 
ing on  the  south  side  of  said  street,  and  projected  into 
and  upon  the  usually  travelled  sidewalk  of  said 
street,  about  three  and  one  half  to  four  feet. 


250  Forms. 

Third.  That  on  said  day  of  ,  18     , 

between  the  hours  of  two  and  four,  p.  M.,  the  plaintiff's 
intestate,  C.  B.,  was  on  or  passing  along  said 
street,  at  the  point  aforesaid,  and  without  any  fault  or 
negligence  on  his  part,  or  that  of  his  parents  or  guardians, 
the  said  wooden  structure  or  counter  fell  towards  the 
north,  and  into  or  upon  about  the  centre  of  the  sidewalk 
at  that  point ;  and,  in  falling,  struck  and  fell  upon  said 
C.  B.,  fracturing  his  skull  and  otherwise  injuring  him, 
from  the  effects  of  which  injuries  he  died  within  four 
hours  after  the  infliction  thereof,  to  this  plaintiff's  dam- 
age five  thousand  dollars. 

Fourth.  This  plaintiff  further  shows  that  thereafter 
such  proceedings  were  duly  had  before  the  surrogate  of 
Bensselaer  county,  that  on  the  day  of  , 

18  ,  letters  of  administration  were  duly  granted  and 
issued  to  this  plaintiff  upon  the  estate  of  the  said  C.  B. ; 
that  this  plaintiff  on  the  day  last  aforesaid  duly  qualified 
as  the  administrator  of  the  goods,  chattels  and  credits  of 
said  C.  B.,  and  now  is  such  administrator. 

[Here  add  allegations  of  serving  claim,  notice,  &c.  as  re- 
quired.'] 

Wherefore,  &c. 

[Note. —  The  following  allegation  has  been  made  in  an 
action  by  an  administrator.'] 

Plaintiff  as  such  administrator  further  alleges  that 
the  said  left  surviving  him   his  widow,  the 

plaintiff,  who  was  dependent  on  him  for  her  support, 
besides  others,  his  next  of  kin,  who  have  been  injured  by 
his  said  death  to  the  amount  of  at  least  five  thousand 
dollars. 


Forms.  251 

♦ 

No.  9. 

Complaint  by  Husband  for  injury  to  Wife. 

Only  special  allegations  givt  n. 

II.  The  plaintiff  further  states  that  A.  B.  was  on 
the  day  of  ,  1872,  and  since  the  year 

1857,  has  continued  to  be,  and  now  is  married  to,  and  is 
the  wife  of  the  plaintiff. 

V.  And,  by  reason  of  the  premises,  the  plaintiff  has 
been  and  will  continue  to  be  subjected  to  great  expense 
in  and  about  procuring  necessary  medical  and  surgical 
and  other  care  and  attendance  and  services  for  his  said 
wife,  and  to  great  loss  of  money  in  the  loss  of  her  labor 
and  services,  and  the  earnings  thereof,  which  he  other- 
wise would  have  aud  receive  ;  and,  also,  to  the  loss  of  the 
comfort  of  the  society  and  health  of  his  said  wife. 

Wherefore,  &c. 


No.  10. 

Complaint  by  Father  for  injury  to  Minor 

Child. 

Special  aUegatio  ns  only  given. 

I.  That  on  or  about  the  day  of  , 

188  ,  the  time  of  the  injury  hereinafter  mentioned,  one 
A.  B.  was  a  minor  son  of  the  plaintiff,  being  then  be- 
tween and  years  of  age. 

IV.   That  by  reason  of  said  injuries  to  his  said  minor 
son,  the  plaintiff  has  suffered  great  loss  from  the  want  of 
service  of  his  said  son,  which,  before  said  injury,  said  son 
had  been  accustomed  to  render   him,    and   of  which  he 
has  since  been  deprived,  and  from  said  son's  diminished 


252  Forms. 

ability  to  labor  for  the  benefit  of  the  plaintiff,  and  has 
been  put  to  great  inconvenience  and  expense,  and  has 
suffered  great  loss  and  damage  for  medical  attendance 
and  other  expenses,  to  his  damage  dollars. 


No.   11. 

Complaint  against  New   York   City. 

Court  of  Common  Pleas 
For  the  City  and  County  of  New  York. 


A.   B. 

against 
The  Mayor,  Aldermen  and  Com- 
monalty of  the  City  of  New 
York. 


The  plaintiff,  complaining  of  the  defendants,  respect- 
fully shows  to  the  Court : 

I.  That  the  defendants  at  all  times  mentioned  in  this 
complaint  were,  and  still  are,  a  body  corporate,  existing 
under  and  duly  incorporated  by  the  laws  of  the  State  of 
New  York,  having  the  care  and  charge  of  the  said  city 
and  the  government  and  regulation  thereof,  and  of  the 
sidewalks  and  streets  thereof,  and  bound  to  keep  the 
same  in  repair  and  good  order,  and  free  from  all  dan- 
gerous incumbrances  and  obstructions,  and  well  and 
sufficiently  guarded  and  in  a  safe  condition. 

II.  And  this  plaintiff  further  shows,  on  information 
and  belief,  that  street  in  said  city, 
between  street  and  place,  is  one  of 
the  old  streets  of  said  city,  and  for  several  years  prior 
to  the  time  first  hereinafter  mentioned  said  street  had 
been  regulated  and   paved  and  the  sidewalk  upon   the 


Forms.  253 

south-easterly  side  thereof  had  been  paved  and  kept  in 
a  secure  and  safe  condition. 

[Allege  nature  of  defect  and  facts  establishing  notice.] 

III.  [Allege  facts  and  nat  in*  of  accident  and  injur  yf  and 
absence  of  contributory  negligence.'] 

IV.  And  this  plaintiff  further  shows  that  the  injuries 
aforesaid  were  cause  by  the  acquiescence  of  the  defend- 
ants in  the  illegal  continuance  of  the  dangerous  condition 
of  the  sidewalk  aforesaid,  and  by  their  neglect  and 
omission  to  have  the  same  cleaned  off  and  made  safe  for 
persons  passing  over  the  same,  and  that,  as  this  plaintiff 
is  informed  and  believes,  the  defendants  had  notice  and 
well  knew  of  the  existence  of  said  ice  and  snow  on  and 
the  dangerous  character  and  condition  of  said  sidewalk. 

V.  And  this  plaintiff  further  shows  that  heretofore 
and  on  the  day  of  ,  188  ,  she  pre- 
sented to  the  Comptroller  of  the  City  of  New  York  the 
claim  hereinbefore  set  forth,  upon  which  this  action  is 
founded,  and  that  at  least  thirty  days  have  elapsed  since 
the  presentation  of  the  said  claim  for  adjustment  as  afore- 
said, but  that  said  Comptroller  has  hitherto  wholly 
neglected  and  refused  to  make  any  adjustment  and  pay- 
ment thereof. 

[Add  allegation  of  notice  to  law-officer.] 
Wherefore,  etc. 


No.  12. 

Answer  by  New  York  City. 

Presentation  of  claim  admitted.     Anew  r  to  complaint,  Form 
No.  11,  ante.     See  verification. 

[Court  and  title  of  cause.] 

The  defendants  answer  the   complaint  herein  as  fol- 
lows: 


254  Foems. 

I.  They  have  no  knowledge  or  information  sufficient 
to  form  a  belief  as  to  each  and  every  allegation  therein 
contained,  except  as  hereinafter  specifically  admitted. 

II.  They  admit  that  they  are  a  municipal  corporation, 
existing  under  and  by  virtue  of  the  laws  of  the  State  of 
New  York,  and  they  further  admit  the  allegations  con- 
tained in  the  paragraph  of  said  complaint  numbered  V. 
[Presentation  of  claim.'] 

III.  Further  answering,  the  defendants  allege  that,  as 
they  are  informed  and  believe  to  be  true,  the  injuries 
claimed  to  have  been  sustained  by  the  plaintiff,  were 
caused  solely  by  her  negligence,  and  in  no  way  by  negli- 
gence on  the  part  of  the  defendants. 

Wherefore,  &c. 

City  and  County  ) 
of  New  York,     )      '  ' 

,  the  Deputy  Comptroller  of  the  City  of 

New  York,  and  an  officer  of  the  defendant  in  the  above- 
entitled  action,  being  duly  sworn,  says  that  the  foregoing 
answer  is  true  to  his  knowledge,  except  as  to  the  matters 
therein  stated  to  be  alleged  upon  information  and  belief, 
and  as  to  those  matters  he  believes  it  to  be  true.  Depo- 
nent further  says,  that  the  reason  why  this  verification  is 
not  made  by  the  defendants,  is  that  they  are  a  corpora- 
tion, and  that  this  deponent  is  an  officer  thereof,  to  wit : 
deputy  comptroller  ;  and  that  the  ground  of  his  belief 
as  to  all  matters  not  herein  stated  upon  his  knowledge, 
are  as  follows,  to  wit :  information  obtained  from  the 
books  and  records  of  the  department  of  finance,  or  of 
other  departments  of  the  city  government,  or  from  state- 
ments made  to  him  by  certain  officers  or  agents  of  the 
defendants. 

^~ -^^—  j 

Deputy  Comptroller. 

[Jurat.'] 


Forms.  255 


No.  13. 

Answer  by  City  of  Buffalo. 
Presentation  of  claim  adffHtted. 

[Court  and  title  of  cause.] 

And  now  comes  the  defendant,  the  City  of  Buffalo, 
by  ,  its  attorney,  and  for  answer  to  the  com- 

plaint of  the  plaintiff  herein,  says  : 

I.  This  defendant  admits  that  at  all  the  times  men- 
tioned in  said  complaint,  it  was  and  now  is  a  municipal 
corporation,  duly  organized  and  existing  under  and  by 
virtue  of  the  laws  of  the  State  of  New  York,  and  that 
the  plaintiff  herein  presented  his  pretended  claim  for 
the  damages  complained  of  to  the  common  council  of  the 
defendant,  and  demanded  payment  of  the  same,  and  said 
common  council  refused  to  pay  said  claim,  or  any  part 
thereof. 

II.  And  further  answering  said  complaint,  this  de- 
fendant says  it  has  no  knowledge  or  information  sufficient 
to  form  a  belief  as  to  the  truth  of  any  of  the  allegations  in 
said  complaint  contained,  not  hereinbefore  specifically 
admitted  ;  and,  therefore,  denies  the  same,  and  each  and 
every  part  thereof. 

Wherefore,  &c. 


256  Forms. 

No.  14. 
Answer  by  City  of  Rochester. 

Public  street  admitted. 

[  Court  and  title  of  cause.'] 

For  answer  to  the  complaint  of  the  plaintiff  in  the 
action  above-entitled,  the  defendant  admits  that  it  is  a 
municipal  corporation,  with  powers  and  duties  as  in  said 
complaint  alleged ;  that  street,  in  said  com- 

plaint mentioned,  is  a  public  street  in  the  city  of  Roches- 
ter, and  that  was  and  is,  as  alleged  in  said 
complaint,  the  wife  of  the  plaintiff. 

Further  answering,  on  information  and  belief,  the 
defendant  denies  each  and  every  other  allegation  in  said 
complaint  contained. 

Wherefore,  &c. 


No.  15. 

Answer  by  City  of  Troy. 

Nothing  admitted  but  fact  of  incorporation. 
Supreme  Court. 


C.  B. 

against 
The  City  of  Troy. 


J 


The  City  of  Troy,  the  defendant  in  the  above-entitled 
action,  answering  the  complaint  therein,  alleges  and  states 
as  follows,  that  is  to  say  : 


Forms.  257 

First.  It  admits  and  avers  that  the  defendant  is  a 
municipal  corporation,  clothed  with  certain  powers  and 
charged  with  certain  duties  which  are  prescribed  by 
law. 

Second.  It  denies  any  knowledge  or  information  suffi- 
cient to  form  a  belief  as  (.o  the  truth  of  any  of  the  allega- 
tions of  the  complaint  to  the  effect  that  the  injuries  to 
the  plaintiff  complained  of  were  produced  or  occasioned 
by  any  negligence  or  omission  of  duty  on  behalf  of  said 
defendant,  or  of  any  of  its  officers,  agents  or  servants  at 
the  time  when  and  in  respect  to  the  place  where  such 
injury  happened. 

Third.  It  avers,  on  information  and  belief,  that  the 
plaintiff's  own  negligence  or  want  of  ordinary  care  pro- 
duced or  contributed  to  produce  whatever  injury  he,  the 
said  plaintiff,  has  sustained,  and  on  account  of  which  this 
action  was  brought. 

Fourth.  It  denies  any  knowledge  or  information  suf- 
ficient to  form  a  belief  a3  to  the  truth  of  the  allegations 
contained  in  said  complaint  in  respect  to  the  presentation 
to  the  city  comptroller  of  the  verified  claim  of  the  plaint- 
iff, and  the  facts  out  of  which  it  arose,  and  upon  which 
this  action  is  brought. 

Fifth.  It  controverts  and  denies  each  and  every  alle- 
gation in  said  complaint  contained,  which  is  not  herein 
admitted  or  denied  specifically. 

Wherefore  this  defendant  demands  judgment  herein 
for  the  dismissal  of  the  complaint,  with  costs. 


Att'y  for  Defendant, 
15  City  Hall,  Troy,  N.  Y. 

Rensselaer  county,  ss.  : 

E.  F.,  being  sworn,  says  that  he  is  the  mayor  of  the 
City  of  Troy,  that  he  has  heard  read  the  foregoing  answer, 
and  knows  the  contents  thereof ;  that  the  same  is  true  of. 
17 


258  FoRMS- 


his  own  knowledge,  except  the  matters  therein  stated  to 
be  alleged  on  information  and  belief,  and  as  to  those  mat- 
ters he  believes  it  to  be  true. 


[Jurat] 


INDEX. 


A. 

Page 

ABATEMENT  at  death  of  person  injured 10,  12 

prevented  by  stipulation 10 

none  after  verdict 10 

of  husband's  action  for  injury  to  wife 11 

ABUTTING  OWNER,  liable  only  by  statute 37 

when  liable  concurrently  with  city 37 

liability  of  city  not  shifted  upon 37,  162 

ordinance  to  clean  sidewalk 163 

no  recovery  over  against 166 

ACCEPTANCE  of  street  or  highway  (See  Highway) 

general  rule  of  dedication  and 44 

necessary  to  supplement  dedication 47,  50 

necessity  of  clear  proof  of 50 

provable  by  acts 51,  195 

acts  to  prove,  examples 51,  195 

dedication  and,  leading  cases 57 

provable  by  map 195 

user  to  prove 52,  55 

by  limitation,  New  York  statutes 56 

of  structure  built  by  private  individual 58,  105 

ACCIDENT,  fact  of,  not  notice  to  city 116 

prior  at  same  place  may  be  proven 204 

ACTS,  to  prove  dedication 46,  195 

to  prove  acceptance 51,  195 

[259] 


260  Index. 


ACTS,  of  person  injured,  held  negligent 134 

of  person  injured,  held  not  negligent 155 

ACTUAL  NOTICE,  to  bind  city 119-121  ;  200-202 

to  whom,  sufficient 120,  201 

to  whom,  insufficient 121,  201 

evidence  competent 201 

evidence  incompetent 201 

ADOPTED  CHILD,  parent's  action  for  injury  to 12 

ADOPTION  of  structure,  city  liable 58,  105 

AGENCY,  basis  of  liability  of  city  for  act  of  officers 79 

AGENT,  liable  for  negligence  36 

concurrently  liable  with  principal 37 

liability  of  principal  for  act  of 34 

liability  of  city  for  act  of 92 

not  liable  if  ultra  vires 93 

ALBANY,  presentation  of  claim 178 

limitation  of  time  for 172 

ANSWER 189 

ANTICIPATING  DANGER,  duty  of  city  for  jury 129 

APPARENT  WALK,  city  liable  for  injury  upon 70 

ARCHITECT  or  builder,  liable  only  to  employer 36 

AUBURN,  presentation  of  claim 178 

B. 

BAR,  by  act  of  decedent,  injury  causing  death 23 

by  act  of  parent,  action  for  death  of  child 23 

BINGHAMTON,  presentation  of  claim 178 

liability  for  streets  limited 74 

BRIDGES,  liability  of  cities  to  repair 69 

villages  in  New  York  not  bound  to  repair 81 

owned  by  State,  city  not  liable 69 

even  if  built  by  city 93 

unless  treated  as  part  of  street 69 

over  drains,  cross-walk  includes 67 

BROOKLYN,  liability  for  streets,  limited 74 

BUFFALO,  presentation  of  claim 178 


Index.  261 

Page 

BURDEN  OF  PROOF,  generally  on  plaintiff L93 

of  negligence,  on  plaintiff 198 

of  contributory  negligence 205,  209 

of  possession  of  funds 80 

C. 

CALIFORNIA,  action  for  injuries  causing  death 13 

CARE  OF  STREETS,  corporate  duty 83 

degree  of  (See  Degree  of  Cake). 
CARELESSNESS  after  injury,  evidence  to  mitigate  damages. .  .156 

CHARTER,  liability  of  cities  based  on 72 

cities  exempt  by 74 

as  evidence  of  incorporation 193 

as  evidence  of  duty  to  repair 194 

CHILD,  parent's  action  for  injury  to 11 

for  death  of 20 

■when  release  bars 23 

damages  in 220,  225 

separate  action  of 12 

CIRCUMSTANTIAL  evidence  of  negligence 199 

of  absence  of  contributory  negli- 
gence  208 

character  of  defendant's  negligence 208 

instinct  of  self-preservation 208 

habits  of  person  injured 209 

no  appearance  of  fault 209 

if  balanced,  no  recovery 209 

knowledge  of  nuisance  proven  by 27 

CLAIM,  presentation  of 173-184 

as  affecting  costs 174 

New  York  statutes 174 

cases 174 

confined  to  actions  on  contract 175 

under  charters 177 

Albany 178 

Auburn 178 


262  Index. 

Page 

CLAIM,  under  charters,  Binghamton 178 

Buffalo 178 

New  York 178 

Oswego 178 

Schenectady 178 

Troy 178 

Utica 178 

statutes  not  retroactive 179 

to  whom 179 

what  to  present 180 

contents 181 

amount  claimed,  as  affecting  recovery 180 

limitation  of  time 172 

must  be  pleaded 188 

how  proven 194 

COASTING,  injuries  by  160 

as  obstruction 160 

as  licensed  nuisance 160 

CODE  OF  CIVIL  PBOCEDUBE,  §  1776 193 

1870.... 18 

1902-5 16 

3245 175 

COHOES,  statute  of  limitations 171 

COMMISSIONEBS  of  highways,  liability  of  in  New  York 78 

COMMON  PATH,  cities  liable  for  injuries  upon 70 

COMPABATIVE  NEGLIGENCE 154 

COMPLAINT,  Code  requisites 185 

particular  requisites 186 

cases 187 

CONCUBBENT  LIABILITY 37 

abutting  owner  and  city 37 

agent  and  principal 37 

contractor  and  city 37 

person  causing  obstruction  and  city  38 

servant  and  master 37 

tenant  and  owner 37 

CONSTBUCTIVE  NOTICE 121-128  ;  202-204 


Index.  263 

Page 

CONSTRUCTIVE  NOTICE,  defined 123 

evidence  to  establish  ;  other  accidents . .  204 

ordinance 204 

weather  records.  203 

inferred  from  what ;  notoriety 202 

length  of  time... 203 

illustrations 122 

length  of  time  to  establish  ;  generally  ..124 
obstructions  by  elements . .  125 

what  sufficient 121 

CONTRACT,  to  repair  street  no  excuse  to  city 164 

theory  of  liability  based  on 84 

CONTRACTOR,  assuming  duty  of  city,  Lability  of 36 

to  perform  certain  work,  liability  of 36 

concurrently  liable  with  city 37 

not  bound  to  build  crosswalk  where  none  before  37 

liable  for  fault  of  employees 36 

liability  of  principal  for  fault  of 34 

selection  and  control  of  by  city 101 

obstruction  by,  notice  to  city  unnecessary 117 

independent,  liability  of  city  for  acts  of 98 

work  dangerous 99 

work  not  dangerous 98 

supervision  by  officer 99 

CONTRIBUTORY  NEGLIGENCE 131,  205 

general  rule 7,  131 

absence  need  not  be  pleaded 187 

burden  of  proof  of 205 

circumstantial  evidence  of 208 

comparative  negligence 154 

defective  vision,  to  use  street  with,  not. 144 

degree  of  care  132 

evidence  to  prove 233 

imminent  danger 153 

imputed 152 

infant,  when  attributable  to 145,  151 

degree  of  care  of,  cases 140 


264  Index. 

Page 
CONTRIBUTORY  NEGLIGENCE, 

intoxication,  when  is 145 

not  per  se 144 

does  not  excuse 145 

knowledge  of  defect 139 

cases  pro  and  con. . .  140,  141 

not  per  se 139 

latent  defects 143 

medical  treatment,  improper,  not 233 

non-suit,  when  proper 237 

of  parents 146,  150 

presumption  of  safety 136 

proximate  cause 132 

question  for  jury 238 

recovery  barred,  cases 134 

reco  rery  not  barred,  cases 155 

right  to  whole  street 138 

carriage-way  of  bridge 139 

not  confined  to  crosswalk 138 

subsequent  carelessness 156 

wrongful  act,  burden  on  defendant 203 

CORPORATE  DUTY,  care  of  streets  is 83 

COSTS,  presentation  of  claim  as  affecting 174 

CROSS-WALK,  part  of  street 67 

includes  bridge  over  drain 67 

pedestrian  not  bound  to  use 138 

contractor  not  bound  to  erect 37 

CUL-DE-SAC,  dedication  of 60 

D. 

DAMAGES,  action  by  person  injured 212-219 

compensatory,  only 213 

disease  as  element  of 218 

double  not  recoverable 217 

evidence  to  prove 216 

to  married  woman 219 

measure  of,  generally 213 


Index.  265 

Page 
DAMAGES,  action  by  person  injured,  pecuniary  condition  as 

element 219 

prospective 214 

special,  what  may  include 215 

speculative,  not  recoverable 213,  217 

suffering,  as  element 217 

mental  alone  not 218 

to  husband 219 

to  parent 220 

injury  causing  death 220-228 

actual  and  prospective 222 

to  beneficiaries  only 222 

elements  and  evidence 223 

interest,  New  York  act  of  1870 16,  22G 

limited  in  New  York  to  $5,000 17 

measure 221,  223 


to  parent. 


225 

pecuniary  only 221 

summary 227 

evidence  to  rebut  or  reduce 234 

excessive 239 

measure  in  suit  to  recover  over 1GG 

how  pleaded 187 

DANGEBS  upon  highways,  instances 2-4 

actual  obstructions 3 

actual  defects 3 

embankments 4 

excavations 2 

abrupt  change  of  grade 4 

icy  sidewalks 2 

objects  thrown  or  falling 4 

causes  of  fright  to  horses 4 

some  special 157-160 

coasting 157 

ice 160 

imminent  (See  Imminent  Danger). 

of  street,  enumerated 71 


266  Index. 

Page 

DANGEKS  off  street,  recovery  allowed 71 

recovery  not  allowed 71 

DEATH  BY  NEGLIGENCE 

New  York  statutes  and  decisions 14-24 

Act  of  1847 14 

amendment  of  1849 15 

amendment  of  1870 16 

Code  of  Civil  Procedure 16 

abatement  at  death  of  wrongdoer. . .   19 

bar  by  act  of  beneficiary 23 

bar  by  act  of  decedent 23 

beneficiary  unnecessary 18,  19 

common-law  right  of  husband   or 

parent 11,  20 

damages  limited  to  $5,000 17 

husband  as  beneficiary 16 

special  damage  unnecessary 19 

two  killed,  no  joint  action 24 

statute  of  limitations 170 

outside  New  York 13-14 

California 13 

Georgia 13 

Illinois 13 

Maryland 13 

Massachusetts 13,  14 

Minnesota 13,  14 

Missouri 13 

Nebraska 13 

Pennsylvania 13,  14 

Tennessee 13,  14 

Texas 13,  14 

abatement  of  action  at  common  law 12 

damages 220 

DEDICATION,  and  acceptance,  highways  established  by 44-60 

conveyance  unnecessary  to 46 

of  cul-de-sac 60 

defined 45 


Index.  2G7 

Page 

DEDICATION,  evidence  of 40,  196 

part  of  street  only  proven 60 

intent  must  be  clear 45 

shown  by  acts 46 

map  to  show 46 

actual  street  on  actual  map 49 

made  or  accepted  by  former  owner 47 

or  user  as  private  way  not  sufficient 60 

of  public  foot- way 60 

revocation  of 49 

inferred  from  user 52 

DEFECT  OE  OBSTRUCTION  ;  illustrations 2 

fact  of,  how  proven 196 

DEFECTIVE  VISION,  use  of  streets  not  contributory  negli- 
gence   144 

DEFENDANT  in  negligence  suit,  who  may  be 34 

abutting  owner  not  causing  obstruction 36 

agent  or  servant 36 

architect  or  builder,  not 36 

concurrent  liability 37 

contractor 36 

officer 35 

person  causing  obstruction 34 

principal  for  act  of  agent 34 

principal  for  act  of  contractor 34 

DEFENDANT'S  CASE,  generally 230 

absence  of  notice 233 

contributory  negligence 233 

damages 234 

evidence  to  disprove  negligence .  231 

DEGREE  OF  CARE  required  of  city,  reasonable Ill 

active  vigilance 101,  114 

duty  to  anticipate  danger 129 

of  excavations 89 

not  insurer Ill 

proportioned  to  danger 114 

of  public  works 113 


268  Index. 

Page 
DEGREE  OF  CARE  required  of  individual  or  private  corpora- 
tion   113 

of  licensee 31,  32 

of  traveller,  generally 132 

knowing  defect 140 

of  infant 146 

DEPARTMENTS,  city  when  liable  for  acts  of ...  96 

when  not  liable 94 

DESPERATE  ALTERNATIVE,  question  of  contributory  negli- 
gence  154 

DISCRETIONARY  POWER,  of  city. 7,  84-86 

DISEASE  as  element  of  damages 218 

predisposition  to,  no  bar  to  recovery 234 

DUAL  FUNCTIONS  of  city 82-91 

E. 

ELEMENTS,  obstruction  by 124 

ESTABLISHMENT  of  highways  (See  Highways). 

EVIDENCE  of  acceptance  of  highway 194 

of  actual  notice 201 

of  carelessness  after  injury 156 

to  prove  constructive  notice 202-4 

length  of  time 203 

notoriety 202 

ordinance  when  not 204 

other  accidents 204 

weather  records 203 

of  contributory  negligence 209,  233 

of  damages 216,  223 

in  reduction  of  damages 234 

of  dedication 195 

of  defect 196 

of  funds 81 

of  injury 198,  212 

of  negligence 198 

to  excuse  negligence,  competent 230-231 

absence  of  funds 231 


Index.  209 

Page 
EVIDENCE  toexcus-  negligence,  competent,  extent  of  streets.  .231 

ifforts  and  limitation  of  power 231 

guard  removed  by  stranger 231 

to  excuse  negligence,  incompetent 231-232 

belief  that  street  safe 232 

competency  of  officers 232 

contract  to  repair 232 

incompetency  of  officers 232 

instructions  to  agents 232 

legislative  authority 232 

that  others  passed  uninjured 232 

that  similar  or  worse  places 231 

of  notice,  license  is  some 103 

of  place  of  injury 194 

of  presentation  of  claim 191 

of  prospective  injury 214 

of  special  damages 215-223 

of  repair  after  injury,  to  show  funds 81 

EXCAVATION,  as  source  of  danger 2 

degree  of  care 8'J 

duty  of  city  to  guard,  irrespective  of  contract . .  101 

EXCESSIVE,  DAMAGES 239 

EXHIBITION  of  injured  member 212,  213 

may  be  made 212 

cannot  be  compelled 213 

F. 

FACT  OF  INJURY,  how  proven  212 

by  person  injured 212 

by  others  present 212 

by  physician 212 

by  exhibiting  injured  member. 212 

FOOT- WAY,  dedication  of 60 

FORMS,  answer,  by  city  of  Buffalo 255 

New  York 253 

Rochester 2  56 

Troy 25 


270  Index. 

Page 

FORMS,  complaint,  against  New  York  city 252 

by  administrator 249 

by  husband 251 

by  infant,  through  guardian  ad  litem 246 

by  parent 251 

by  person  injured 244 

notice  to  law-officer 244 

statement  of  claim  by  guardian 242 

by  husband  or  parent 243 

by  person  injured 241 

by  personal  representative 243 

FUNDS,  liability  dependent  on 76 

burden  of  proof 80 

evidence  to  show 81 

FUTURE  DAMAGES,  if  no  proof  as  to  past 216 

physician  may  prove 214 

G. 

GEORGIA,  action  for  injuries  causing  death. 13 

GROUNDS  OF  LIABILITY,  generally 26-34 

negligence 33 

nuisance 26 

of  cities  (See  Municipal  Coepo- 

bations). 
for  recovery  over 165 

H. 

HIGHWAYS,  how  established 39-60 

by  dedication  and  acceptance 44-60 

by  prescription 41 

by  statutory  proceeding 40 

acceptance  of 50 

establishment  of,  how  proven 194 

within  limits,  city  liable 66 

in  towns,  who  liable 90,  91 

HORSES,  objects  frightening 4 

(See  Runaway  Houses.) 


Index.  271 

Page 

HUSBAND,  action  for  injury  to  wife 10 

action  for  death  of  wife 11,  20 

as  beneficiary  in  action  for  death  of  wife 16 

abatement  of  action 11 

damages  to 219 

statute  of  limitations 170 

wife's  judgment  as  evidence  for 11 

HYDEANTS  or  leaders,  ice  forming  around 128 

I. 

ICE  as  obstruction 157 

ridgy  or  uneven 158 

on  uneven  walk 100 

smooth 158,  159 

question  of  notice 125-127 

IGNOEANCE,  when  negligence 119 

as  excusing  liability  for  nuisance 28 

ILLINOIS,  action  for  injury  causing  death 13 

period  of  prescription 43 

who  to  be  protected 05 

IMMINENT  DANGEE,  question  of  contributory  negligence 153 

IMPUTED, NEGLIGENCE 152 

INCOEPOEATION,  necessity  of  proof  of,  N.  Y.  Code,  \  1776. .  .  193 

INDIANA,  period  of  prescription 43 

INFANT,  contributory  negligence  of 145-152 

degree  of  care  required Mfl 

LNJUEY,  fact  and  extent,  how  proven 213 

nature  of,  how  pleaded 187 

how  proven 198 

INJUEIES  without  remedy 6,  7 

contributory  negligence 7 

discretionary  act 7 

necessary  obstruction 6 

no  negligence 7 

INSUEEE  of  safety  of  streets,  city  not Ill 

INTENT  TO  DEDICATE,  necessary  to  prove 45 

shown  by  acts 40 


272  Index. 


INTOXICATION,  when  contributory  negligence 145 

not  per  se 141 

negligence,  do  excuse  for 146 

IOWA,  abutting  owner  not  liable 36 

period  of  prescription 43 

private  leading  into  public  ways 69 

J. 

JOINT  ACTION  by  representative  of  two  estates 24 

JOINT  NEGLIGENCE,  both  several  and  joint  liability 38 

no  joint  liability  in  Minnesota 38 

JUDGMENT  against  city  as  evidence  to  prove  recovery  over 166 

of  wife  as  evidence  in  action  for  husband 11 

JURY,  questions  for  (See  Questions  fob  Juby). 

JURORS,  selection  of 190 

rejection  of  competent •  •  •  191 

K. 
KNOWLEDGE  OF  DEFECT,  question  of  contributory  negli- 
gence  139-143 

not  per  se 139 

when  is 143 

of  nuisance,  implied  from  circumstances 27 

L. 

LATENT  DEFECTS,  notice  to  city  not  presumed 128 

caution  to  anticipate  danger 128 

traveller  not  bound  to  see 143 

LAW-OFFICER,  notice  to,  New  York  act  of  1886 177 

LICENSE   TO   OBSTRUCT,    generally 30 

none  for  carelessness 31,  33 

not  notice 118 

evidence  of  notice 103 

effect  on  liability  for  nuisance ...  30 
implied  from  absence  of  objection  30 
to  railroad,  city  not  excused  by..  164 
in  absence  of,  city  only  liable  with 

notice 104 

for  coasting 160 


Index.  273 

Page 

LICENSED  OBSTRUCTION,  degree  of  safety 31 

LICENSEE,  liability  of  city  for  negligence  of 102-104 

license  lawful 102 

injury  by  mode  of  exercise 103 

license  for  dangerous  thing 102 

recovery  over  depends  on  contract 105 

shifting  liability  upon 1G2 

LIABILITY  OF  CITIES  for  streets,  bow  conferred 79-88 

theory  of  agency 79 

based  on  agreement 77 

depends  on  charter 73 

depends  on  funds 79 

power  implies  duty 79 

LIFE,  probable  duration  as  element  of  damages 224 

LIMITATION,  of  time  to  present  claim 172 

statutory  acceptance  of  higbw  ay  by 55 

(See  Statute  of  Limitations.  | 
M. 

MAP,  to  prove  highway 195 

dedication  by 46  49 

actual 49 

made  or  accepted  by  owner «, 48 

binds  owner  only 47,  48 

effect  as  to  public 48 

MARYLAND,  action  for  injuries  causing  death 13 

MASSACHUSETTS,  action  for  injuries  causing  death 13 

period  of  prescription 43 

private  ways  leading  into  public 69 

MASTER,  action  for  injury  to  servant 12 

liable  for  negligence  of  servant 34 

MEASURE  OF  DAMAGES,  generally 213 

injuries  causing  death 223 

MICHIGAN,  place  of  injury 67 

MINISTERIAL  act,  liability  of  city 88 

MINNESOTA,  action  for  injuries  causing  death 13,  14 

period  of  prescription 44 

no  joint  liability 38 

MISSOURI,  action  for  injuries  causing  death 13 

18 


274  Index. 

Page 
MUNICIPAL  CORPORATIONS,  control  of  agents 101 

dual  powers 82 

corporate 82 

governmental 82 

general  liability 33,  61 

liability  limited  by  statute 74 

Binghamton 74 

Brooklyn 74 

Ogdensburgh 74 

Schenectady 74 

occasions  of  liability 62 

causing  defect ...  62 

negligent  construction ...  62 
permitting  defect 62 

primary  duty  to  care  for  streets.  101 

N. 

NEBRASKA,  action  for  injuries  causing  death 13 

NECESSARY  OBSTRUCTION,  license  for 30 

■when  no  remedy 6 

NEGLIGENCE,  burden  of  proof 198 

comparative 154 

evidence  to  prove 198 

evidence  to  excuse 230 

grounds  of ;  in  act 33 

in  neglect  of  duty 34 

ignorance,  when  is 119 

imputed 152 

must  be  pleaded 187 

for  whose,  city  liable 92-105 

of  agents  or  servants 92 

of  contractors 98 

of  licensees 102 

of  officers  and  departments 94 

of  other  persons 104 

NEGLIGENT  act,  no  license  for 33 

plan,  liability  for 86 


Index.  275 

Page 

NEXT  OF  KIN  defined,  New  York  Code 13 

NON-SUIT,  when  proper  for  contributory  negligence 237 

NORTH  CAROLINA,  period  of  prescription 44 

NOTICE  TO  CITY 

need  of,  generally 7,  118 

must  be  pleaded 1" ' 

actual  (See  Actual  Notice). 
constructive  (See  Constructive  Notice). 
adjacent  premises,  no  presumption  from  own- 
ership of 130 

fact  of  accident  not 117 

fact  of  obstruction  not 116 

duty  of  supervision 128 

of  particular  defect 130 

of  latent  defects,  necessary 128 

license  not 11° 

some  evidence  of 108 

unnecessary,  if  defect  caused  by  city 117 

necessary,  if  defect  caused  by  wrong-doer. . .  104 

not  if  adopted  by  city 105 

statute  fixing  length  constitutional 130 

to  whom  city  chargeable  with,  illustrations 120 

•     councilman »•   1-0 

mayor,  or  marshal 120 

policeman 1-0 

street  commissioner 120 

street  superintendent 1-0 

to  whom  city  not  chargeable  with,  illustrations.  .  .120-121 

one  alderman 1-1 

two  trustees 121 

janitor 1-1 

lamplighter 1-1 

to  law-officer,  New  York  act  of  1886 177 

of  action  pending,  unnecessary  to  recovery  over 166 

NOTORIETY,  as  evidence  of  constructive  notice 202 

NUISANCE,  as  ground  of  liability 26-33 

creator  of,  when  not  liable 26 


276  Index. 

Page 

NUISANCE,  general  rule 26 

ignorance  of,  -when  may  excuse 28 

knowingly  maintaining 27 

knowledge  implied  from  circumstances 27 

license  as  affecting  liability 30 

no  license  for  carelessness 31 

maintainer  of,  who  may  be  26 

owner  and  tenant  both  liable 37 

user  or  request  to  abate 29 

O. 

OBSTRUCTIONS  and  defects,  examples 3 

fact  of,  not  notice 116 

for  convenience 30 

by  city,  notice  unnecessary 117 

OFFICER,  city  liable  for  acts  of 96-97 

city  not  liable  for  acts  of 94-96 

liable  for  negligence 35 

OGDENSBURGH,  limitation  of  liability 74 

ORDINANCE,  abutting  owners  compelled  to  clean  walks  by ....  163 

city  may  shift  liability  upon  licensees  by 162 

not  upon  abutters 162 

constructive  notice,  when  not  evidence  of 204 

•  directing  work,  notice  of  obstruction  necessary.  .118 

evidence  to  warrant  presumption  of  obedience. . .  163 

liability  of  city  not  increased  by 194 

nor  by  neglect  to  enforce 194 

omission  to  make  will  not  excuse  city 232 

OSWEGO,  presentation  of  claim 178 

limitation  of  time  for 172 

OWNER,  concurrently  liable  with  tenant 37 

abutting,  liability  of  (See  Abutter). 
OWNERSHIP  of  abutting  premises  not  notice  to  city 130 

F. 

PARENT,  common-law  action  for  death  of  child 20 

damages  to 220 

release  by,  when  bars  action  for  death  of  child 23 

services  of  child,  action  for 11 


Index.  277 

PECUNIARY  condition  as  element  of  damages 221,  225 

PENNSYLVANIA,  injuries  causing  death 13.  14 

PHYSICIAN,  evidence  of,  as  to  injury 212 

as  to  future  injuries 214,  220 

PLACE  OF  INJURY,  city  liable GG-71 

apparent  walk 70 

bridge GO 

common  path 70 

cross-w.dk G7 

highway  within  limits G6 

Michigan  statute 68 

place  off  street,  cases  pro  and  co/i .  68 

pleading  of 188 

private  way  leading  into  public. . .   69 

Iowa  statute 69 

Massachusetts  statute 69 

proof  of !:il 

sidewalk 67 

certain  cities  exempt 68 

place  treated  as  street  by  authorities  66 

whole  street,  right  to 67 

PLAINTIFF,  burden  of  proof  generally 193 

*  of  negligence 198 

what  must  establish,  and  how 

absence  of  conti-ibutory  uegligence 205 

damages 211 

defect  or  obstruction 196 

duty  of  city 194 

fact  of  incorporation 193 

nature  of  injury 198 

notice 200 

idace  of  accident,  and  that  it  was  a  highway. . .  194 

jiresentation  of  claim  and  notice 194 

PLAINTIFF'S  case 193-200 

PLEADINGS  (See   Complaint  ;    Abbwbb) 185-189 

PRESUMPTION  of  safety  of  streets 136 

PROOF  (See  Evidence  ;  Plaintiit's  Case  ;  Defendant's  Oabb). 
PROSPECTIVE  damages 214 


278  Index. 

Page 

PROSPECTIVE  damages,  limit  of 214 

evidence  of 214 

injury  causing  death 222 

PROTECTION  on  highway,  who  entitled  to 64,  65 

in  New  York 64 

in  some  other  States 65 

PROXIMATE  cause 

two,  rule  generally 106 

in  city-negligence  cases 106 

runaway  horses 108 

contributory  negligence 132 

PUBLIC  and  corporate  functions  of  city 82-91 

PUNITIVE  damages  not  allowed 213,  221 

Q. 

QUASI-CORPORATIONS 89-91 

QUESTIONS  for  court  and  jury 235-239 

for  jury,  fact  of  obstruction ; 197 

whether  place  highway 196 

whether  place  treated  as  street 67 

whether  city  liable  for  place  off  street. ...  70 
whether  proper  precaution  taken  by  city..  129 

when  ice  obstruction 159 

contributory  negligerce 238 

of  infants 149,150 

knowledge  of  defect  .  .140 
examples 2o6 

R. 

RAILROAD  obstructing  road,  city  not  excused 104,  164 

REVOCATION  of  dedication 49 

RECOVERY  over,  abutting  owner,  none  against 166 

general  rule 164 

grounds  of  liability 165 

license 165 

contractor 165 

wrong-doer 165 


Index.  279 

Page 

RECOVERY  over,  grounds  of,  notice 166 

usual 166 

express,  unnecessary 106 

only  changes  burden  of  proof 106 

judgment  us  evidence. ...    166 

REVIVAL  of  husband's  action  for  injuries  to  wife 11 

RIDGY  or  uneven  ice,  notice •  ■   127 

ROCHESTER,  statutory  acceptance  by  limitation 56 

RUNAWAY  HORSES,  liability  of  city 108 

S. 

SARATOGA  SPRINGS,  presentation  of  claim 179 

SCHENECTADY,  liability  limited  81 

presentation  of  claim 178 

limitation  of  time  for. .  .172 

statute  of  limitations 171 

SERVANT,  liability  for  negligence 36 

of  master  for  negligence  of 34 

master's  action  for  loss  of  services •  •  ■   12 

SERVICES  of  child,  parent's  action 11 

measure  of  value 226 

of  servant,  master's  action 12 

of  wife,  husband's  action 10 

SHIFTING  liability 37,  102  164 

by  charter 

by  contract 104 

SIDEWALK,  care  of,  discretionary  in  some  cities  in  New  York.  68 

cities  not  liable  for  exercise  of  discretion 84 

part  of  street 08 

not  in  some  States 08 

SOCIETY  OF  WIFE,  husband  may  recover  for  loss  of 10 

action  abates  at  his  death 11 

SOURCES  OF  DANGER  to  travellers  (See  Danohbs). 

SPECIAL  DAMAGES,  elements  and  evidence 214,  216 

injury  causing  death,  elements  and  evi- 
dence   228 

necessity  of  proof 19,  -1  ■» 

SPECULATIVE  DAMAGES  not  recoverable 213,  217 


280  Index. 

Page 

STANDING  in  street  not  contributory  negligence 155 

STATUTE  OF  LIMITATIONS 168-172 

action  by  person  injured 169 

before  1876 169 

act  of  1876 169 

Code  Civ.  Pro 169 

action  for  loss  of  services 170 

injuries  causing  death 170 

retroactive,  quaere 171 

Cohoes 171 

Oswego. 172 

Schenectady 171 

STATUTORY  acceptance  of  highways,  by  limitation 56 

establishment  of  highways 40-41 

prescription  in  New  York 44 

STIPULATION,  abatement  of  action  prevented  by 10 

STREET,  city  not  liable  for  discretion  in  making 83 

proof  that  place  of  injury  was 194 

right  to  safety  in  whole 138 

SUNDAY,  travelling  on,  no  bar 233 

SUPERVISION  of  streets,  duty  of 128 

T. 

TENANT,  concurrently  liable  with  owner .   37 

as  maintainer  of  nuisance 26 

may  recover  for  injury  opposite  demised  premises —   71 

TENNESSEE,  action  for  injuries  causing  death 13,  14 

TEXAS,  action  for  in  juries  causing  death 13,  14 

TOWN,  liable  for  defective  highways  ;  N.  Y.  act  of  1881 91 

TRAVELLER,  general  rule  of  liability  of  city  to 61 

in  New  York,  protection  not  confined  to 65 

only,  protected  in  some  States 65 

TROY,  inhabitants  competent  as  jurors 191 

presentation  of  claim 178 

must  be  pleaded 188 

U. 

ULTRA  VIRES,  city  not  liable  for  act  of  agent 93 

State  bridge,  city  not  liable 69 


Index.  281 

Page 

USER,  dedication  inferred  from 49 

no  particular  time 52 

dedication  and  acceptance,  cases 52 

to  prove  acceptance 52 

alone,  20  years  necessary 53 

against  will  of  owner,  no  dedication  or  prescription 53 

of  nuisance,  liability  dependent  on 29 

UTICA,  presentation  of  claim 178 

V. 

VILLAGES,  New  York  act  of  1870 74 

liability  of  same  nature  as  cities 115 

W. 

WEATHER  RECORDS,  evidence  of 203 

WIFE,  husband's  actiou  for  injury  to 10 

death  of 11,20 

husband  as  beneficiary  in  action  for  death  of 16 

WRONG-DOER,  right  to  recover  over  against 165 

WRONGFUL  ACT,  burden  of  contributory  negligence  on  de- 
fendant  209 


WHOLE    NUMBEB  OF   PAGES,    332. 


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